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REPORT SEpTEmbEr 2013 R:13-09-A
REPORT SEpTEmbEr 2013 R:13-09-A
REPORT SEpTEmbEr 2013 R:13-09-A
REPORT SEpTEmbEr 2013 R:13-09-A

REPORT

SEpTEmbEr 2013

R:13-09-A

REPORT SEpTEmbEr 2013 R:13-09-A

The Dating Game:

How Confusing Food Date Labels Lead to Food Waste in America

REPORT SEpTEmbEr 2013 R:13-09-A The Dating Game: How Confusing Food Date Labels Lead to Food Waste
REPORT SEpTEmbEr 2013 R:13-09-A The Dating Game: How Confusing Food Date Labels Lead to Food Waste
REPORT SEpTEmbEr 2013 R:13-09-A The Dating Game: How Confusing Food Date Labels Lead to Food Waste

Authors

This report was produced in partnership between the Harvard Food Law and Policy Clinic and the Natural Resources Defense Council.

The lead author of this report is Emily Broad Leib, Director of the Harvard Law School Food Law and Policy Clinic (a division of the Center for Health Law and Policy Innovation), with input, editing, and production support from Dana Gunders at the Natural Resources Defense Council.

Additional coauthors include: Juliana Ferro, Annika Nielsen, Grace Nosek, and Jason Qu.

Portions of this report are based on previous research and writing by Jacqueline Pierluisi, Lauren Sidner, and Nathan Rosenberg, students in the Harvard Food Law and Policy Clinic, with research assistance from Harvard Food Law Society members Amanda Ravich, Elizabeth Rosen, Erin Schwartz, Jane Wang Williams, and Margaret Wilson.

Acknowledgements

This report would not have been possible without the assistance and cooperation of Mitzi Baum, Kendra Bird, Jean Buzby, Erin Daly, Dr. Angela Fraser, Dr. Elise Golan, Wayne Melichar, Dr. Elliot Ryser, Alex Schmitt, and Jean Schwab.

We’d also like to thank the following people for reviewing this report. Reviewers do not necessarily concur with the paper’s recommendations but have advised on portions of its content.

Jose Alvarez, Senior Lecturer, Harvard Business School; former CEO, Stop & Shop/Giant Landover

Jonathan Bloom, Author of American Wasteland

Sarah Klein, Senior Staff Attorney, Food Safety Program, Center for Science in the Public Interest

Dr. Theodore Labuza, Professor of Food Science and Engineering, Univ. of Minnesota

Dr. Roni Neff, Program Director, Food System Sustainability and Public Health, Johns Hopkins Center for a Livable Future

Doug Rauch, Founder, Daily Table; former President, Trader Joe’s

About the Harvard Law School Food Law and policy Clinic

The Harvard Food Law and Policy Clinic, a division of the Center for Health Law and Policy Innovation, is an experiential teaching program of Harvard Law School that links law students with opportunities to serve clients and communities grappling with various food law and policy issues. The Clinic strives to increase access to healthy foods, prevent diet-related diseases, and assist small and sustainable farmers and producers in participating in local food markets. For more information, visit http://blogs.law.harvard.edu/foodpolicyinitiative/ or follow on Twitter @HarvardFLPC.

About NrDC

The Natural Resources Defense Council (NRDC) is an international nonprofit environmental organization with more than 1.3 million members and online activists. Since 1970, NRDC’s lawyers, scientists, and other environmental specialists have worked to protect the world’s natural resources, public health, and the environment. NRDC has offices in New York City, Washington, D.C., Los Angeles, San Francisco, Chicago, Montana, and Beijing. Visit them at www.nrdc.org and follow them on Twitter @NRDC.

TAbLE oF CoNTENTS

ExECuTivE SummAry

2

iNTroDuCTioN

5

CHApTEr 1:

History of U.S. Date Labeling: A Piecemeal Response to Consumer Interest in Date Labels

6

CHApTEr 2:

The Current Regulatory Regime

8

Federal

Law

8

Federal Voluntary Guidance

11

State Law

12

Local

Regulations

15

The Role of Industry

15

CHApTEr 3:

Shortcomings of the Current System

17

Inconsistent and Unreliable Wording and Methods of Determination

17

Consumer Confusion and Misinterpretation of Link to Food

19

Consumer Food Waste

21

Economic Losses and Inefficiencies for Manufacturers, Distributors, and Retailers

22

Challenges for Food Recovery Initiatives and Anti-Hunger Organizations

22

CHApTEr 4:

Recommendations

23

Standardize and Clarify the Food Date Labeling System Across the United States

23

The Role of Industry, Government, and Consumers

25

AppENDix A:

Congressional Delegation of Food Labeling Authority to Agencies

28

AppENDix b:

State Requirements in Brief; Supporting Charts for Figures 2 and 3

32

AppENDix C:

State Date Labeling Regulations in Full

34

ENDNoTES

55

pAGE 1 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

ExECuTivE SummAry

T he waste of edible food by consumers, retailers, and manufacturers poses a

and industry money; squanders important natural resources that are used to

significant burden to the American food system. Wasted food costs consumers

grow, process, distribute, and store America’s food supply; and represents a missed opportunity to feed the millions of food insecure households in the United States that are struggling to access healthy, affordable food. Misinterpretation of the date labels on foods is a key factor leading to this waste.

date labels on foods is a key factor leading to this waste. PHoto: WWW.FooDWAstemovie.Com Improving date

PHoto: WWW.FooDWAstemovie.Com

Improving date labeling policies and practices can decrease consumer confusion, which will not only reduce food waste, but also improve food safety. Date labels on food come in a dizzying variety of forms including “use by,” “best before,” “sell by,” and “enjoy by” dates, yet these simple markers are both poorly understood and surprisingly under-regulated, such that their meanings and timeframes are generally not defined in law. Because regulators, industry players, and citizens have become accustomed to seeing date labels on many food products over time, policymakers have not asked important questions about the date labeling

system, and there has been a dearth of rigorous policy analyses of how these labels affect consumers’ choices surrounding purchasing and discarding food products. This policy brief examines the historical impetus for placing dates on food—namely a desire to indicate products’ freshness—and the ways in which the system has failed to meet this goal, while creating a range of ancillary problems. Relevant federal laws and authorities are described along with a review of the legislative history on this topic, and a comparison of state laws related to food date labeling is provided. The paper then describes why and how date labels

pAGE 2 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

contribute to the waste of edible food in the United States and explains specifically how:

n

The lack of binding federal standards, and the resultant state and local variability in date labeling rules, has led to a proliferation of diverse and inconsistent date labeling practices in the food industry. Such inconsistency exists on multiple levels, including whether manufacturers affix a date label in the first place, how they choose which label phrase to apply, varying meanings for the same phrase, and the wide range of methods by which the date on a product is determined. The result is that consumers cannot rely on the dates on food to consistently have the same meaning.

n

This convoluted system is not achieving what date labeling was historically designed to do—provide indicators of freshness. Rather, it creates confusion and leads many consumers to believe, mistakenly, that date labels are signals of a food’s microbial safety, which unduly downplays the importance of more pertinent food safety indicators.

n

This confusion also leads to considerable amounts of avoidable food waste, as the mistaken belief that past- date foods are categorically unsuitable for consumption causes consumers to discard food prematurely.

n

Inconsistent date labeling policies and practices harm the interests of manufacturers and retailers by creating increased compliance burdens and food waste at the manufacturer/retail level.

n

Date labeling practices hinder food recovery and redistribution efforts by making the handling of past- date foods administratively and legally complex.

After analyzing these five core problems with the contemporary date labeling regime, this report will introduce recommendations on how to begin to remedy the food waste and food safety issues related to date labeling, by creating a system in which date labels more clearly communicate information. Recommendations are broken into two sections: the first section proposes key changes to the date labeling system across the United States, and the second section identifies relevant stakeholders and describes actions that each should take to address the issue.

In brief, the recommendations are as follows:

i. STANDArDizE AND CLAriFy THE FooD DATE LAbELiNG SySTEm ACroSS THE uNiTED STATES

1. Make “sell by” dates invisible to the consumer: “Sell by” dates generate confusion and offer consumers no useful guidance once they have brought their purchases home. Therefore, “sell by” and other date labels that are used for stock control by retailers should be made invisible to consumers. Products should only display dates that are intended to communicate to the consumer.

2. Establish a reliable, coherent, and uniform consumer-facing dating system: The following five

recommendations on how to standardize and clarify date labels will help establish a more effective system of consumer-facing dates that consumers can understand and trust. The system should be consistent across products to the extent it makes sense.

n

Establish standard, clear language for both quality-based and safety-based date labels: The language used before dates on food products should be clarified and standardized to better inform consumers of the meaning of different dates. The words used should (1) be uniform for a particular meaning across the country and across products; (2) be unambiguous in the information they convey; and (3) clearly delineate between safety-based and quality-based dates.

n

Include “freeze by” dates and freezing information where applicable: Promote the use of “freeze by” dates on perishable food products to help raise consumer awareness of the benefits of freezing foods and the abundance of food products that can be successfully frozen in order to extend shelf life.

n

Remove or replace quality-based dates on non- perishable, shelf-stable products: Removing “best before” or other quality dates from shelf-stable, non- perishable foods for which safety is not a concern would reduce waste of these products and increase the weight given to labels placed on products that do have safety concerns. Some type of date may still be useful, such as an indication of shelf life after opening (e.g. “Best within XX days of opening”) or the date on which the product was packed (e.g., “Maximum quality XX months/years after pack date”).

n

Ensure date labels are clearly and predictably located on packages: Consumers should be able to easily locate and understand date labeling information on packages, perhaps through the use of a standard “safe handling” information box, akin to the Nutrition Facts panel.

information box, akin to the Nutrition Facts panel. pAGE 3 | The Dating Game: How Confusing

pAGE 3 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

n Employ more transparent methods for selecting dates: Create a set of best practices that manufacturers and retailers can use to determine date labels for products, and consumers can learn about if interested.

3. Increase the use of safe handling instructions and “smart labels”: Provide clear, pertinent food safety information alongside date labels. This could include additional phrases, QR codes that allow consumers to scan for more information, or “smart labels” like time- temperature indicators.

ii. THE roLE oF iNDuSTry, GovErNmENT AND CoNSumErS

Collaboration amongst different stakeholders and entities is necessary to standardize and clarify the current date labeling regime. Each stakeholder has a role to play to improve the system. Three groups of stakeholders have been identified; solutions targeted at each group include:

1. Food Industry Actors: Industry actors can take meaningful steps to reduce date label confusion, reduce food waste, and improve consumer safety by:

n

Converting to a system which adopts the recommended changes above: making “sell by” information invisible to consumers; establishing a standardized, easily understandable consumer- facing dating system; and providing more safe handling information;

n

Selling or donating near-expiration or expired products; and

n

Educating consumers on the meaning of date labels and on safe food handling.

2. Government: Congress, federal administrative agencies, state legislatures, and state agencies should work towards a system of date labeling that is more standardized, more easily understood by consumers, and less arbitrary. The federal Food and Drug Administration and U.S. Department of Agriculture have existing authority to regulate misleading labels, and should use this authority to reduce confusion around date labeling. Otherwise, Congress can act to create overarching federal legislation. Regardless of whether a federal law is passed, existing federal guidance should be strengthened and streamlined so that states following such guidance will begin to implement more similar state laws and regulations.

3. Consumers and Consumer-Facing Agencies and Organizations: Increased consumer education— covering everything from the meaning of date labels, to the importance of proper refrigeration temperature, to strategies on how to determine whether food is safe and wholesome to eat—will be crucial regardless of whether policymakers decide to implement changes to the current date labeling regime or to maintain the status quo. Federal, state, and local agencies and organizations can conduct consumer outreach and education to build awareness of proper food safety, handling, and storage, as well as the high rates of food waste due to date label confusion and the detrimental effects of such waste. Consumers can act now by educating themselves as well.

Revising the convoluted and ineffective system of date labels is one of the most straightforward ways we can address the rising rates of wasted food, while providing a service to consumers by improving both food safety outcomes and economic impacts.

pAGE 4 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

iNTroDuCTioN

A merica is fixated on food—we have television channels devoted to it,

competitions revolving around it, and every manner of book, blog, and

newspaper column revering it. For a country so obsessed with food, it

is alarming how much of it Americans throw away, despite the serious ethical, environmental, and financial implications of this waste. An estimated 40 percent of food in the United States goes uneaten, 1 and according to even the most conservative estimates, Americans waste 160 billion pounds of food each year. 2 The rate of food loss in the United States far exceeds that of much of the rest of the world, with the average American consumer wasting 10 times as much as food as the average consumer in Southeast Asia. 3 One key contributor to wasting food is confusion around food expiration dates.

Despite the high rate of food waste, almost 15 percent of U.S. households were food insecure at some point in 2011. 4 It has been estimated that redistributing 30 percent of all the food lost in the United States could feed every food insecure American their total diet. 5 Wasted food has serious environmental consequences as well. 6 When food is wasted, all of the resources used to produce, store, transport, and handle that food—including arable land, labor, energy, water, chemicals, and oil—are also wasted. 7 A study by McKinsey & Company projected that roughly 100 million acres of cropland could be saved if developed countries reduced consumer food waste by 30 percent. 8 It is estimated that approximately 25 percent of America’s freshwater use goes into the production of wasted food. 9 Compounding these environmental and ethical harms are the financial losses incurred by American families when enough food to fill the Rose Bowl is wasted each day in the United States. 10 At the consumer level, according to one calculation, food waste costs the average American family of four $1365-2275 per year. 11 Those studying the problem of food waste in the United States and abroad have identified confusion over food date labeling as a major contributing factor at both the industry and the consumer level. 12 Research from the United Kingdom supports a connection between the misinterpretation of date labels and wasted food, 13 and a study conducted by the Bio Intelligence Service for the European Commission identified the standardization of food date labeling as an important policy intervention to reduce food waste. 14

This policy brief explores the relationship between food waste, food safety, and the regulatory systems that govern, or fail to govern, food date labeling practices in the United States. It will describe how the contemporary date labeling regime creates confusion among consumers, obstacles for food service providers, and inefficiencies in the food industry, ultimately contributing to and exacerbating the waste of edible food in this country. The brief will begin by tracing the history of food date labeling in the United States and then proceed to analyze the current labeling landscape at the federal, state, local, and industry levels. Drawing on the results of a comprehensive literature review, a 50-state study of current date labeling regulations, and data from interviews with experts in government, industry, and food science, this paper will outline key problems with the contemporary date labeling regime: its disorienting effects on consumers, its failure to convey important food safety information (despite the appearance of doing so), its negative economic impacts across the food sector, and its hindrance of food recovery initiatives. All of these factors lead directly to food waste in American homes and across the supply chain, throughout production, distribution, retail, food service, and home consumption. Based on this analysis, the brief will conclude by outlining recommendations for how different stakeholders can take action to improve current practices and foster policy changes to begin to remedy the negative impacts of date labeling on food waste in the United States.

pAGE 5 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

CHAPTER 1: HiSTory oF u.S. DATE LAbELiNG:

A piECEmEAL rESpoNSE To CoNSumEr iNTErEST iN DATE LAbELS

T he urbanization of the United States divorced most consumers from the

creation of their food—these consumers began purchasing the bulk of their

food, rather than growing it themselves, and had little personal knowledge

concerning the freshness and shelf life of their purchases. 15 As Americans began to buy

more processed or packaged foods, this knowledge deficit forced consumers to rely on assurances from retailers that the foods they were purchasing were fresh, yet these assurances often proved insufficient to fully dispel consumer fears. 16

By the 1970’s, consumer concern surrounding the freshness of food crystallized, 17 and diverse stakeholders within the food industry, government, and the public interest sector began to seriously explore what is known as open dating in response to consumer unease. Open dating uses a date label that includes a month, day, and year in a format clearly evident to the consumer. 18 Out of a nationwide survey of 250,000 shoppers published in 1975, 89 percent of respondents favored this kind of dating system. 19 According to another survey, 95 percent of respondents listed open dating as the “most useful” consumer service for addressing product freshness concerns. 20 “Open” dating differed from the long-established industry practice of “closed” dating, in which manufacturers and retailers used symbols or numerical codes that were undecipherable to consumers to manage their inventory and stock rotation, 21 without any intention of relaying that information directly to consumers. 22 Throughout the 1970s, many supermarkets voluntarily adopted open dating systems in response to mounting consumer interest. 23 Government actors also began to react to rising consumer demand for more objective, accessible indicators of product freshness and quality during this period. By 1973, 10 state governments had adopted laws or regulations mandating open dating for certain classes of food products. 24 The federal government also began increasing its engagement with the issue of date labeling by supporting research on this topic. In 1975, the General Accounting Office (now the Government Accountability Office or GAO) issued a report to Congress focusing on “problems with stale or spoiled foods” and advocating a uniform date labeling system to address consumer concerns. 25 In 1979, the Office of Technology Assessment (OTA), which existed as an office of the U.S. Congress from 1972 to 1995, was assisted by a task force of consumer representatives, retailers, processors, wholesalers, scientific experts, and government officials in publishing a comprehensive report for the Senate on open dating to address “[consumer] concern over the freshness of

food.” 26 Critically, even in the 1970s supporters of open dating recognized that assuring the microbiological safety of food could not be achieved using date labels. 27 Indeed, the OTA report flatly stated that “there is little or no benefit derived from open dating in terms of improved microbiological safety.” 28 An analysis of the intersection between date labels and food safety will be discussed at length in the sections below. Food labeling received the concerted attention of Congress during this time period, yet legislation on date labeling ultimately was not passed. 29 Congressional action could have regulated date labels across the country in a predictable, empirically-grounded way and would have standardized industry practices and preempted widespread variation in state regulations. Members of Congress recognized these benefits, and during the 1970s and 1980s introduced several legislative proposals to institute a uniform open code dating system on a nationwide scale, mostly via amendments to the federal Food, Drug, and Cosmetic Act. 30 At least 10 bills were introduced by the 93rd Congress (1973-1975) alone. 31 The 1975 GAO report encouraged Congress to adopt one of these proposed amendments. 32 The Food and Drug Administration (FDA) also welcomed the potential for an explicit statutory mandate over date labeling, even while maintaining that it already had authority to regulate date labeling under its existing powers to control adulteration and misbranding. 33 However, none of the federal legislative efforts gained enough momentum to pass into law and create a uniform, nationwide system. 34 A variety of stakeholders shaped the debate about open dating legislation. In addition to the role consumers played in demanding more information about their products, various food industry actors also played a role. At first, supermarket chains opposed such regulation because they believed that “open dating would add to the price of the food, since shoppers would pick over the packages on the supermarket shelves, selecting only the newest,” 35 causing increased losses of outdated, but edible food, and thus forcing supermarkets to raise prices in order to

pAGE 6 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

account for the discarded products. 36 However, after this initial opposition, supermarkets began to use open dates voluntarily in response to consumer demand, and even advertised the new practice as a promotional strategy to attract customers. 37 Then, when Congress tried to pass legislation that would regulate open dating, spokespersons from the National Association of Food Chains argued before Congress that the industry was already voluntarily spending millions of dollars on food labeling and that the additional federal requirements would simply impose higher costs and “deter [members of the food chains] from adopting further voluntary, progressive programs in the future.” 38 Policymakers were also discouraged from coming up with a standard federal model because of the difficulties of trying to harmonize the “differences in views on type of date, explanation of date, and foods covered.” 39 Further, food lawyers—even those advocating for a uniform date labeling system—questioned whether Congress was “willing to pass a strong preemption provision” that would invalidate all state laws, and thus successfully achieve a uniform national date labeling regime consistently applied in all states. 40 Due to the lack of success of open dating legislation, the 1970s saw the uneven and piecemeal creation of an American date labeling regime, as state governments and industry actors responded to consumers’ interest in fresh, unspoiled food in a range of ways, but with no unifying strategy at the federal level. 41 The resulting inconsistencies across state and local laws quickly began to create consumer confusion 42 and industry distress 43 which did not go unnoticed, even by early observers. Food lawyers recognized that the proliferation of inconsistent state laws could affect interstate commerce, and hinted at the idea that it could inflate the price of food, reiterating the initial concern raised by supermarket chains that open labeling would lead to food waste and higher food prices. 44 For example, costs would go up if food companies needed to use separate packaging lines for products entering each jurisdiction in order to comply with divergent state laws. 45 Streamlining open dating laws across the nation, so that the food industry could adapt to a single legal regime instead of trying to comply with the proliferation of inconsistent state laws, provided then and continues to provide a strong rationale for Congress to pass legislation that can improve productivity and efficiency in the food industry. This would also ensure that consumers are provided consistent and coherent messages from the dates they are seeing. 46 The

GAO concluded its discussion of open code dating in 1975 by warning that failure to implement a national system would “add to confusion, because as open dating is used on more products, it would continue letting each manufacturer, retailer, or State choose its own dating system.” 47 Nevertheless, no federal legislation has been passed for more than 40 years and this lack of uniformity persists today, leading to wasteful food practices within the American food system. After a more than two-decade lapse in federal consideration of these issues, the next move towards a federal date labeling requirement occurred in the late 1990s. In 1999, Congressman Frank Pallone (D-NJ) introduced the National Uniform Food Safety Labeling Act, which would have required food to bear a date after which the food should no longer be sold “because of diminution of quality, nutrient availability, or safety,” preceded by the words “use by.” 48 The bill was stalled at the House Energy and Commerce Committee and did not pass. Similarly, in 1999, Congresswoman Nita Lowey (D- NY) introduced the Food Freshness Disclosure Act and reintroduced similar bills in 2001, 2003, 2005, 2007, and 2009. 49 All the bills were referred to the House Energy and Commerce Committee, but none passed out of committee. The bills proposed to amend the Food, Drug, and Cosmetic Act by adding the requirement of applying uniform freshness dates on food. Uniformity would be achieved by requiring that all freshness dates be preceded by the phrase “best if used by.” 50 Foods identified under 21 C.F.R. § 101.9(j) as exempt from the nutritional labeling requirements of the Nutritional Labeling and Education Act (including food products served at restaurants or schools, raw fruits and vegetables, and certain ready-to-eat foods, such as foods sold at bakeries) would also be exempt from this legislation. 51 The bill would require the “manufacturer, packer, or distributor of the food” to select the freshness date based on tests that demonstrate that when consumed, the nutrient quality of the food would still be the same as indicated by the nutrition facts panel. 53 If passed into law, this legislation would be a positive step towards achieving a uniform federal date labeling system, but it could be strengthened in several ways, as detailed by the recommendations included in this report. For example, the new regulation could require affixing a safety-based date with a different standardized term such as “safe if used by” on products that are empirically proven to cause food safety risks rather than requiring a “best if used by” date on all food products.

> > > > > > -1940 1940’s+ 1950-1970 1970’s 1973-1975 1970’s- PRESENT Many
>
>
>
>
>
>
-1940
1940’s+
1950-1970
1970’s
1973-1975
1970’s- PRESENT
Many Americans farm
or are near their food
source and know how
fresh their food is.
Americans begin to
move off farms.
Slowly lose direct
connection to their
food source.
Americans begin to buy
more processed and
packaged foods, and most
food is purchased from
grocery stores. Consumers
lose the ability to know how
fresh their food is.
Forced to trust manufacturers
and grocery stores to supply
them with fresh food,
consumers began demanding
verification that food is in fact
fresh, citing open dating as the
best method to achieve this.
Congress considered
action. At least 10 federal
bills introduced in
1973-75, but none pass.
States develop own
laws, leading to a
patchwork of rules
different in each
of the 50 states.

pAGE 7 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

CHAPTER 2: THE CurrENT rEGuLATory rEGimE

T o understand how the food date labeling system contributes to America’s food waste problem, it is essential to review the different legislative and regulatory systems that currently govern date labeling. As discussed above,

despite occasional federal interest, no legislation has been passed, and thus federal law generally does not require or regulate the use of date labels. 54 This lack of coordinated

action at the federal level increases the complexity of the food labeling regime by causing a regulatory void that states and localities have attempted to fill in various ways, resulting in a tremendously varied set of state and local laws regarding the use of date labels. Industry has also attempted to provide direction, with some food trade associations creating voluntary guidance on date labeling practices for specific commodities that don’t necessarily help to improve public health. 55 Because none of these approaches are comprehensive, individual manufacturers and retailers are often left to decide how date labels are actually implemented.

left to decide how date labels are actually implemented. The lack of formal definitions or standardization

The lack of formal definitions or standardization across date labeling policies and practices is a problem because it gives unreliable signals to consumers. Such inconsistency exists on multiple levels, including whether manufacturers affix a date label in the first place, how they choose which label category to apply, internal inconsistency within each label category due to the lack of formal legal definitions, and variability surrounding how the date used on a product is determined. The result is that consumers cannot rely on the dates on food to consistently have the same meaning. This section analyzes the ways in which these regulatory and industry forces operate and interact with each other. Ironically, despite the original intention of increasing consumer knowledge about their food, date labeling has become a largely incoherent signaling device for consumers. Instead of offering the type of clear and unambiguous information that consumers seek, date labels can and do confuse and mislead them.

FEDErAL LAw

The scope of federal laws governing food labeling is broad, but does not currently address date labeling with any specificity or consistency. Congress clearly has the power to regulate date labels under the Commerce Clause in the U.S. Constitution, which gives Congress power to regulate products sold in interstate commerce. 56 Using this power, Congress has passed a number of federal statutes that govern labeling of different types of food, with two agencies having the clearest delegation from Congress of authority over food labeling: FDA and the U.S. Department of Agriculture

pAGE 8 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

Congress clearly has the power to regulate date labels under the Commerce Clause in the

Congress clearly has the power to regulate date labels under the Commerce Clause in the U.S. Constitution, which gives Congress power to regulate products sold in interstate commerce.

(USDA). However, as described in the previous section, because Congress has not successfully passed national date labeling legislation to date, no agencies have been given explicit authority to regulate in this realm. The statutes and the provisions that are most relevant to food labeling are discussed below, with excerpts of language from each federal law included in Appendix A.

Agency Authority to regulate Food Labeling and Existing Laws

Congress has never mandated that FDA or USDA implement a national date labeling regime; 57 however, it has delegated general authority to both agencies to ensure food safety and protect consumers from deceptive or misleading food package information. 58 Both FDA and USDA have the power to regulate food labeling for the foods that fall under their respective purviews. FDA has statutory authority to regulate the safety of all foods with the exception of meat, poultry, and some fish, under the Food, Drug, and Cosmetic Act of 1938, the Nutritional Labeling and Education Act of 1990, the Fair Packaging and Labeling Act of 1966, the Infant Formula Act of 1980, and the Food Safety Modernization Act of 2011. 59 On the other hand, USDA has jurisdiction to regulate meat, poultry, and certain egg products, under the Poultry Products Inspection Act of 1957, the Federal Meat Inspection Act of 1906, the Egg Products Inspection Act of 1970, the Perishable Agricultural Commodities Act of 1930, and the Agricultural Marketing Act of 1946. 60 FDA and USDA share jurisdiction over certain products including eggs 61 and fruits and vegetables. 62 FDA receives broad food labeling authority under several of the Acts mentioned above, with its powers to regulate misbranded foods and misleading labels under the Food, Drug, and Cosmetic Act being the most robust. 63 Since one of the purposes of the Food, Drug, and Cosmetic Act is to protect the interest of consumers, the Act prohibits the “adulteration or misbranding of any food.” 64 Food under

FDA’s jurisdiction may be considered misbranded if the food’s label is false or misleading “in any particular.” 65 USDA also has the power to regulate misleading labels for all products under its purview, and has vested the Food Safety and Inspection Service (FSIS), an enforcement agency within USDA, with this authority. 66 Under the Acts mentioned above, USDA has broad authority to promulgate regulations to protect consumers and ensure that products specifically regulated under each Act are not misbranded. 67 Similar to the Food, Drug, and Cosmetic Act, under the provisions of these statutes, labels are considered misbranded if they are false or misleading “in any particular.” 68 As explained throughout the report, the current date label system leads to consumer confusion and the waste of edible food. If FDA and/or USDA agree that date labels are “misleading,” they could make a case that their existing authority should be interpreted to allow them to regulate date labeling as a form of misbranding of food items, without any additional action on the part of Congress. Importantly, these laws also require that FDA and USDA work together in promulgating consistent regulations. For example, under both the Poultry Products Inspection Act and the Federal Meat Inspection Act, USDA must prescribe regulations for labels that are consistent with the Food, Drug, and Cosmetic Act labeling standards. 69 Further, the Egg Products Inspection Act provides that the two agencies must cooperate with one another in order to decrease the burden on interstate commerce in labeling of eggs, because packages that are not properly labeled could “be sold at lower prices and compete unfairly with the wholesome, not adulterated, and properly labeled and packaged products.” 70 In the past, FDA and USDA have issued joint notices about the regulation of eggs, specifically requesting comments on whether the varying practices for placing expiration dates on egg products would violate the misbranding provisions of the Food, Drug, and Cosmetic Act and “be misleading to consumers given their expectations.” 71 These are some examples of how the two agencies interact with each other and share responsibility to ensure consistency across their respective regulations. FDA and USDA should similarly work together to promulgate regulations that address the misleading impact of date labels by ensuring that date labels are standardized across food products. Other government agencies also share the role of protecting the interest of consumers from deceptive practices. In particular, the Federal Trade Commission (FTC) has food labeling authority under the Federal Trade Commission Act of 1914 if action is needed to prevent “unfair methods of competition” or “unfair or deceptive acts or practices in or affecting commerce.” 72 Further, FDA

if FDA and/or uSDA agree that date labels are “misleading,” they could make a case that their existing authority should be interpreted to allow them to regulate date labeling as a form of misbranding of food items, without any additional action on the part of Congress.

pAGE 9 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

and FTC have joint authority under the Fair Packaging and Labeling Act to create regulations “necessary to prevent the deception of consumers” for any consumer commodities, including food. 73 In response to their shared authority under the Fair Packaging and Labeling Act, FDA and FTC created a memorandum of understanding that gives FDA the authority to regulate food labeling and FTC the authority to regulate food advertising in order to prevent misleading information from reaching the consumer. 74

Similar to any coordinated response by FDA and USDA, the shared responsibility already utilized by FDA and FTC could be a model for a joint response to date labeling regulation, showcasing a way for agencies to work together to streamline date labeling practices across different foods. Figure 1 below includes an illustration of the federal agencies and Acts that govern food labeling.

Figure 1: Congressional and Agency Authority in the Federal Food Labeling System**

Federal Food, Drug & Cosmetic Act* Nutritional Labeling & education Act Food and Drug infant
Federal Food, Drug
&
Cosmetic Act*
Nutritional Labeling
&
education Act
Food and Drug
infant Formula Act*
Administration
Food safety
modernization Act
Fair Packaging and
Labeling Act*
Federal trade
Federal trade
U.s. Congress
Commission
Commission Act
egg Products
inspection Act*
Perishable Agricultural
Commodities Act*
U.s. Department of
Agriculture
Federal meat
inspection Act*
Poultry Products
inspection Act*
Agrictultural
marketing Act

* Acts which give authority pertaining to date labeling on foods.

** Note that FDA may have additional enforcement authority shared with other agencies with regard to food safety, but this chart focuses on primary authority over labeling for certain food types.

pAGE 10 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

The Current Federal Labeling regime How FDA and uSDA use Their Legal Authority

While FDA could interpret its existing statutory authority to enable it to regulate date labeling practices for the foods under its purview, 75 the agency has not done so. According to FDA, it “does not require food firms to place ‘expired by’, ‘use by’ or ‘best before’ dates on food products”; instead, “this information is entirely at the discretion of

the manufacturer.” 76 The only exception is infant formula, which is subject to explicit FDA date labeling requirements. 77 In response to scandals resulting from recalls of infant formula products that were causing illnesses among children because the products lacked sufficient nutrients, 78 and due to findings that industry had too much discretion to decide the appropriate nutritional content of these products, 79 Congress passed the Infant Formula Act of 1980, mandating that FDA set uniform standards for the nutritional content of these products. 80 However, unlike the arguments around freshness discussed in the History Section, the Infant Formula Act focused only on the nutritional content of infant formula products. Under this Act, FDA established

a range of regulations impacting infant formula, including

a requirement that its labels include “use by” dates. 81 The

regulations mandate that determinations used to assign such dates to infant formula must be based on tests that prove the concentration of nutrients is adequate for the health of children up to the marked date. 82 When compared to FDA, USDA more explicitly addresses date labeling for food products under its authority. With a few exceptions, such as requiring an open or coded “pack date”

for poultry products 83 and a lot number or “pack date” for egg products certified by USDA, 84 USDA also does not generally require date labels on regulated products. 85 However, the agency does have technical requirements addressing how dates should be displayed on USDA-regulated food products

if they are employed voluntarily or according to state law.

Under these rules, a calendar date “may” be applied to USDA-regulated products so long as it includes a day and

a month, and possibly a year in the case of frozen or shelf-

stable products. 86 USDA also requires calendar dates to be preceded by “a phrase explaining the meaning of such date, in terms of ‘packing’ date, ‘sell by’ date, or ‘use before’ date,” and notes that such dates can be implemented “with or without a further qualifying phrase, e.g., ‘For Maximum Freshness’ or ‘For Best Quality,’ and such phrases shall be approved by the Administrator [pursuant to procedures outlined in 9 C.F.R. § 317.4].” 87 This latter rule is arguably the most robust federal regulation that exists, but it is limited in three respects: (1) it applies only to USDA-regulated foods (poultry, meat, certain egg products); (2) the three explanatory phrases that are allowed (“packing,” “sell by,” and “use before”) are undefined by the regulation and are allowed to be used interchangeably, which highlights their lack of meaning and inability to communicate significance to consumers; and (3) the rule makes the use of “further qualifying phrases,” which could help correct ambiguity,

totally optional.

FEDErAL voLuNTAry GuiDANCE

Instead of actively regulating date labeling practices in a uniform manner, the federal government has provided mostly voluntary guidance on this subject. One example of voluntary guidance is the “Uniform Open Dating Regulation,” 88 a product of the National Institute of Standards and Technology (NIST), a research and advisory body within the U.S. Department of Commerce, in partnership with the National Conference on Weights and Measures (NCWM), a not-for-profit corporation committed to creating uniform national standards for various units of measurement. 89 Recognizing that the “lack of uniformity between jurisdictions could impede the orderly flow of commerce,” 90 the NCWM has promulgated model regulations on open dating which they hope will be adopted by all state and local jurisdictions. 91 NCWM’s model regulations, which are published in NIST Handbook 130, 92 set “sell by” as the label date that jurisdictions should require for pre-packaged perishable foods and “best if used by” as the date that should be required for semi-perishable or long-shelf-life foods. 93 The model regulations allow all foods to be sold after their label dates, provided that they are of good quality and that perishable foods are clearly marked as being past-date. 94 NIST Handbook 130 also includes guidance for properly calculating the label date 95 and for expressing the date on packaging. 96 Thus far, according to the 2013 edition of NIST Handbook 130, five states (Arkansas, Connecticut, Nevada, Oklahoma, and West Virginia) have regulations in place that automatically adopt the most recent NCWM Uniform Open Dating Regulation published in NIST Handbook 130. 97 Three more states, (Michigan, South Dakota, and Washington) and the U.S. Virgin Islands have adopted an earlier version of NIST Handbook 130 in whole or in part. 98 In sum, while federal guidance on the topic of date labels does exist, only a minority of states have implemented this voluntary guidance. Even though widespread adoption of the most current edition of the guidance would create uniformity and standardization across all states that adopt its open dating provisions, the guidance in NIST Handbook 130 has flaws. For example, as discussed in later sections, utilizing “sell by” dates increases confusion and food waste, and thus these dates are not as effective at communicating their significance to consumers. Suggestions on how date labeling guidance can be strengthened to effectively decrease consumer confusion, improve food safety, and reduce food waste will be discussed below in the Recommendations section of the report. Another example of federal voluntary guidance is the FDA Food Code. 99 The FDA Food Code is a reference document issued by FDA that provides model regulations for state

In sum, while federal guidance on the topic of date labels does exist, only a minority of states have implemented this voluntary guidance.

pAGE 11 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

and local governments on food safety laws. 100 Like NIST Handbook 130, adoption of the code is voluntary. However, many states have chosen to adopt it because the FDA Food Code reflects the expertise of dozens of food safety experts. Importantly, the Code itself is not law; it only becomes binding when states adopt it by statute or regulation, and states typically add their own modifications. A new version of the FDA Food Code was published every two years until 2001 and is now published every four years, with the most recent version published in 2009. 101 The FDA Food Code addresses date labeling requirements in three different areas: shellfish; 102 refrigerated, ready- to-eat potentially hazardous food; 103 and reduced oxygen packaging. 104 For example, for shellfish, the FDA Food Code suggests a date labeling requirement for shellfish 105 that has been adopted by many states. For refrigerated, ready-to-eat potentially hazardous foods “prepared and held in a food establishment for more than 24 hours,” the FDA Food Code requires that they “be clearly marked to indicate the date or day by which the food shall be consumed on the premises, sold, or discarded based on [specified] temperature and time combinations.” 106 The FDA Food Code does provide some guidance, but it only applies date labeling language to a limited number of food items. 107 As mentioned above, states adopt language of the FDA Food Code in their own legislation or regulations; for example 13 states have adopted almost the exact same language as the shellfish date labeling provision in the FDA Food Code. 108

STATE LAw

The Supremacy Clause of the Constitution provides that when state and federal laws conflict, the conflicting state law will be invalidated. 109 Thus, state statutes are not preempted by federal law if they do not directly conflict with existing

federal legislation. 110 Because federal regulation of date labels

is so limited, states consequently have vast discretion to

regulate date labels in almost any way they see fit. Certain states have used that discretion enthusiastically, creating

a system of stringent requirements for date labels, while

others have not regulated date labels at all. The result is an inconsistent state regulatory scheme that is not necessarily improving public health. One possible reason for such wide variation is that depending on the state, date labels fall under the purview of different state government departments, including Department of Health, Department of Agriculture, Department of Weights and Measures, Department of Commerce, or others. 111

Furthermore, state law is not static; state legislatures are constantly updating and amending the date labeling requirements. Several states passed new date labeling laws within the past year. For example, Georgia amended its date labeling rules in 2012 by adding a definition for the

Certain states have used that discretion enthusiastically, creating a system of stringent requirements for date labels, while others have not regulated date labels at all. The result is an inconsistent state regulatory scheme that is not necessarily improving public health.

term “expiration date,” (now defined as being “synonymous with Pull Date, Best-By Date, Best Before Date, Use-By Date, and Sell-By Date,” and meaning “the last date on which the following FOOD products can be sold at retail or wholesale”) 112 and preventing sale after the expiration date of prepackaged sandwiches, eggs, infant formula, shucked oysters, milk, and potentially hazardous food labeled as “keep refrigerated.” 113 This section explores some of the patterns across state date label regulations that emerged from our 50-state research; it also highlights the extreme variations among these regulations to illuminate how our current food labeling system creates confusion for consumers and does not necessarily improve food safety. Although the most defining feature of the state- level regulation of date labels is its sheer variability, 114 there are several discernible patterns among the regulations. States can be roughly grouped into four categories:

1. Those that regulate the presence of date labels on certain foods but do not regulate sales after those dates;

2. Those that do not regulate the presence of date labels but broadly regulate sales after such dates if date labels are voluntarily applied;

3. Those that regulate both the presence of date labels and, broadly, the sale of products after those dates; and

4. Those that do not require or regulate date labels at all.

According to our 50-state research, 41 states plus the District of Columbia require date labels on at least some food items, whereas nine states do not require them on any foods (see Figure 2, below). 115 For example, New York does not require date labels to be applied to any products, while all six of its neighboring states—New Jersey, Pennsylvania, Connecticut, Massachusetts, Vermont, and Rhode Island—have such requirements. Twenty states plus the District of Columbia also regulate the sale of food products after some label dates, while 30 states have no such restrictions (see Figure 3, below). Massachusetts’s regulations are an example of the kind of restrictions states can impose on sales after the label date. In Massachusetts, “food can only be sold past its ‘sell by’ or ‘best if used by’ date if: (1) it is wholesome and its sensory physical qualities have not significantly diminished; (2) it is segregated from the food products which are not past date; and (3) it is clearly marked as being past date.” 116 As with this example, even when regulations exist around the use of date labels, very few states define what the words should mean and virtually none delineate the process for determining the dates (see Appendix C). States also differ in the kinds of food they require to bear date labels (see Figure 4, below) as well as the kind of date labels that are required. Most states that require date labels or regulate the sale of past-date products apply their regulations to specific foods, such as shellfish, dairy/milk, or eggs. A handful of states regulate perishable foods more generally. 117 For example, Maryland requires only that Grade A milk bear a “sell by” date 118 and does not require a date label on any other products; Minnesota, on the other hand, requires “quality assurance” dates on perishable foods 119 and eggs, 120 and “sell by” dates on shellfish. 121 The most common food product

pAGE 12 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

Figure 2: States requiring Date Labels on At Least Some Food products 127

ALL ■ NO REQUIREMENT ■ DATE LABELS REQUIRED DAIRY INFANT FORMULA EGGS BAKERY PRODUCTS SHELLFISH
ALL
■ NO REQUIREMENT
■ DATE LABELS REQUIRED
DAIRY
INFANT FORMULA
EGGS
BAKERY PRODUCTS
SHELLFISH
HAZARDOUS FOODS
MEAT
PERISHABLES
SANDWICHES

Figure 3: States regulating Food Sales past Some Label Dates 128, 129

ALL ALL ■ NO REGULATION ■ PAST-DATE SALES REGULATED DAIRY INFANT FORMULA EGGS BAKERY PRODUCTS
ALL
ALL
■ NO REGULATION
■ PAST-DATE SALES REGULATED
DAIRY
INFANT FORMULA
EGGS
BAKERY PRODUCTS
SHELLFISH
HAZARDOUS FOODS
MEAT
PERISHABLES
SANDWICHES

pAGE 13 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

Figure 4: States regulating Date Labeling 130

 

STATE

PERISHABLE FOODS 131

POTENTIALLY HAZARDOUS FOODS 132

MILK/ DAIRY

MEAT/ POULTRY

SHELLFISH

EGGS

OTHER

ALABAmA

 

X

 

X

     

ALAsKA

       

X

   

ARiZoNA

         

X

 

ARKANsAs

       

X

   

CALiFoRNiA

   

X

 

X

   

CoLoRADo

         

X

 

CoNNeCtiCUt

   

X

       

DeLAWARe

       

X

   

FLoRiDA

   

X

 

X

   

GeoRGiA

 

X

X

 

X

X

X

HAWAii

   

X

       

iDAHo

             

iLLiNois

         

X

 

iNDiANA

       

X

X

 

ioWA

         

X

 

KANsAs

         

X

 

KeNtUCKY

   

X

 

X

   

LoUisiANA

         

X

 

mAiNe

       

X

   

mARYLAND

   

X

       

mAssACHUsetts

X

           

miCHiGAN

X

 

X

X

     

miNNesotA

X

     

X

X

 

mississiPPi

       

X

   

missoURi

             

moNtANA

   

X

       

NeBRAsKA

             

NevADA

 

X

X

       

NeW HAmPsHiRe

   

X

     

X

NeW JeRseY

   

X

 

X

   

NeW meXiCo

   

X

       

NeW YoRK

             

NoRtH CARoLiNA

       

X

   

NoRtH DAKotA

       

X

   

oHio

X

     

X

   

oKLAHomA

       

X

X

 

oReGoN

X

           

PeNNsYLvANiA

   

X

 

X

   

RHoDe isLAND

       

X

 

X

soUtH CARoLiNA

       

X

X

 

soUtH DAKotA

             

teNNessee

             

teXAs

       

X

   

UtAH

             

veRmoNt

       

X

   

viRGiNiA

   

X

 

X

   

WAsHiNGtoN

X

           

WAsHiNGtoN, D.C.

X

X

X

X

X

X

X

West viRGiNiA

         

X

 

WisCoNsiN

       

X

X

 

WYomiNG

       

X

   

pAGE 14 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

that requires date labeling is shellfish, for which such labeling is specifically regulated in 24 states and the District of Columbia. Further, as previously mentioned, eight states have adopted the NCWM Uniform Open Dating Regulation in whole or in part, meaning that those states are more similar to one another in terms of their regulations. 122 The details of each state’s individual regulations also vary dramatically. The following examples only brush the surface of this variation, but illustrate how widely states have departed from one another in creating their open dating regulatory regimes:

n

In Michigan, packaged perishable foods must include a date that may be displayed with or without explanatory terms such as “sell by” or “best before,” but if such terms are used, only particular phrases may be used. 123

n

Rhode Island requires that packaged bakery products contain pull dates. 124

n

New Hampshire and Georgia are the only states to explicitly single out pre-wrapped sandwiches for regulation. 125

n

In contrast with many other states, Minnesota and Ohio explicitly preempt local ordinances on food labeling, reserving all power in this arena to the state. 126

n

New York is one of nine states that have no regulations regarding food date labeling according to the qualifications assessed in this report.

The figures on the preceding pages provide a broad overview of both the patterns and the variations in state-level regulation of date labels. A full list of state regulations can be found in Appendix C.

LoCAL rEGuLATioNS

Date labeling can also be regulated at the local level. The city of Baltimore, for example, prohibits the sale of any perishable food past its expiration date, whereas the state of Maryland does not. 133 In cases where cities have more stringent date

labeling regulations than the state in which they are located, inconsistency in the regulations could lead to even greater consumer confusion, and could also stand in the way of voluntary industry adoption of a more standardized dating system. Repealing or amending such city ordinances that do not improve public health and safety could allow for more consistency. For example, New York City used to require “expiration dates” on milk cartons even though the state of New York imposes no date labeling requirements on any foods. 134 In September 2010, the city repealed its date labeling requirement and fell in line with the state-level approach. 135 The city recognized that its own rule for open dates was not necessary to protect public health because if milk is “handled properly,” it will still be safe to consume even after the expiration date passes. 136 The City also noted that New York State had not reported any “adverse public health effects, poor milk quality or a decrease in milk demand” arising from not requiring a “sell by” date at the state level. 137

THE roLE oF iNDuSTry

The inconsistent regulation of date labels at the federal, state, and local levels means manufacturers and other industry actors often must decide the form and content of date labels. Where no regulations exist, as is the case in many states and for many categories of food, manufacturers are free to decide for themselves which foods will display an open date and which will not. Even when regulations mandate the presence of date labels on specific foods, they almost never dictate the criteria that industry should use to arrive at the date on the label, thus leaving the decision entirely to industry discretion. Some food trade organizations have responded to the lack of uniform regulations by creating their own voluntary guidance for open date labeling, 138 but this guidance is not always consistent from one organization to the next. 139 Because of the lack of standardization, some retailers have even taken it upon themselves to create date labeling practices for products sold in their stores. For instance, in

for products sold in their stores. For instance, in pAGE 15 | The Dating Game: How

pAGE 15 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

The inconsistent regulation of date labels at the federal, state, and local levels means manufacturers and other industry actors often must decide the form and content of date labels.

2004 Walmart started to require its suppliers to place a “best if used by” date on all food products in an effort to ensure consumers of the products’ freshness. 140 While this policy was created with the best of intentions and helped to standardize labels, this change may have in fact led to increased shelf- stable inventory that would have previously been sold

without a date label now risks being wasted when the date labels expire. 141 With increased expectations for the food industry to address social and environmental concerns, 142 improving the date labeling regime actually provides an opportunity for the food industry to better serve consumer interests while simultaneously creating positive environmental and social change. Food companies may be able to benefit financially by developing creative “cause-related marketing” strategies designed for consumers interested in reducing food waste and willing to purchase food items close to the expiration date. 143

Figure 5: Summary of voluntary Guidelines and informal recommendations by Food Trade organizations on open Date Labeling of Food products

Association of Food Industries: informally recommend open dating of olive oil.

Food Marketing Institute: support a voluntary “sell by” date accompanied by “best if used by” information.

International Dairy-Deli-Bakery Association: informally recommends manufacturers’ guidelines (sell by/pull by) for foods that are put on display in the supermarket, such as deli meats.

National Food Processors Association: For refrigerated and frozen foods, indicates that manufacturers are in the most knowledgeable position to establish the shelf life and consequently the specific date labeling information that is most useful to the consumer. to harmonize date labeling among food products, supports a month/day/year (mmDDYY) format, either alphanumeric or numeric.

Specialty Coffee Association of America: encourages members to put a “born-on” date on their products.

Source: EASTERN RESEARCH GRP., INC., CURRENT STATE OF FOOD PRODUCT OPEN DATES IN THE U.S. 1-13 (2003).

pAGE 16 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

CHAPTER 3: SHorTComiNGS oF THE CurrENT SySTEm

iNCoNSiSTENT AND uNrELiAbLE worDiNG AND mETHoDS oF DETErmiNATioN

The lack of binding federal standards, and the resultant state and local regulatory variability in date labeling rules, has led to a proliferation of diverse and inconsistent date labeling practices in the food industry. Open dates can come in a dizzying variety of forms, none of which are strictly defined or regulated at the federal level. This haphazard system is not serving its purpose well. Though it is impossible to provide actual definitions as meanings can vary by state and phrases are not legally defined, the following terms can loosely be interpreted as:

(1) the “production” or “pack” date, which provides the date on which the food product was manufactured or placed in its final packaging; (2) the “sell by” date, which provides information to retailers for stock control leaving a reasonable amount of shelf life for the consumer after purchase; (3) the “best if used by” date, which typically provides an estimate of the date after which food will no longer be at its highest quality; (4) the “use by” date, which also typically is a manufacturer’s indication of the “last date recommended for the use of the product while at peak quality”; (5) the “freeze by” date, which is a reminder that quality can be maintained much longer by freezing product; and (6) even the “enjoy by” date used by some manufacturers, and not clearly defined in a way that is useful to consumers. It is important to note that the meaning of these terms may vary from product to product and among manufacturers of the same products because there is no industry consensus surrounding which date label prefix should be applied to different categories of food products. 144 In addition to discretion over which label to use, industry actors vary in their decisions about when to include a label on a product at all. In a 2003 report prepared for the FDA, six manufacturers were interviewed and asked to describe their processes for deciding when to include an open date on one of their products, and their answers varied widely. 145 Most manufacturers agreed on certain important factors, including the perishability of a product, 146 but beyond that there was a wide range of different responses, illustrating the broad level of discretion left to manufacturers. For instance, some made their decision based on space constraints on packaging while others considered the decision as part of their marketing strategy. 147 Industry guidelines, likewise, do not typically influence manufacturers’ decisions to include date labels and do not usually identify which shelf stable foods should bear open dates. 148 Manufacturers are left to decide for themselves not only when to use a date label and what label term to use, but,

when to use a date label and what label term to use, but, importantly, how this

importantly, how this date will be determined. 149 According to the 2003 report prepared for FDA, a key motivating force behind a manufacturer’s decision to open date is the protection of the consumer’s experience of a product, 150 in order to safeguard that product’s reputation. 151 Manufacturers and retailers accomplish this goal by focusing on the product’s shelf-life—typically conceptualized as “the end of consumer quality determined by the percentage of consumers that are displeased by the product.” 152 Manufacturers and retailers are ultimately free to define shelf-life according to their own market standards, “with some accepting a predetermined degree of change” in product quality over time, “and others finding that no change is acceptable.” 153 Those manufacturers and retailers opposed to any quality change in their product generally choose to set their label dates earlier to ensure that food is consumed only at its peak freshness, in order to protect their brand integrity. Some manufacturers use lab tests to determine the shelf life, others use literature values, and yet others use product turnover rates or consumer complaint

frequency. 154 Ultimately, there is a high degree of variability, arbitrariness, and imprecision in the date labeling process. As explained by one food scientist and former food industry official describing one process that uses grades assigned by professional tasters:

If the product was designed, let’s say, to be a 7 when it was fresh, you may choose that at 6.2, it’s gotten to the point where [you] don’t want it to be

on the market anymore

people still find it reasonably good? Absolutely. But companies want people to taste their products as best they can at the optimum, because that’s how they maintain their business and their market shares. 155

If it’s 6.0, would most

pAGE 17 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

Thus, while open code dating appears on the surface to be an objective exercise, consumer preferences and brand protection color the way in which most of these dates are determined. In most cases, consumers have no way of knowing how a “sell by” or “use by” date has been defined or calculated, and to reiterate from above, the method of calculation may vary widely “by product type, manufacturer, and geography.” 156 It is reasonable that manufacturers want to protect their brands’ reputations. Still, here may be a place for more objective and empirically-grounded methods for determining quality-based dates. One such method that could be applied for some products is the use of empirical shelf-life testing. 157 A product’s “shelf-life” can be determined by testing and monitoring the product over its actual shelf- life, which can take several years for shelf-stable products. 158 Alternatively, manufacturers can employ accelerated shelf- life testing, a practice involving the study and storage of food products under test abuse conditions. 159 However, at present, the use of shelf-life testing is almost entirely optional. 160 For those manufacturers that lack the requisite time, money, expertise, or initiative to conduct such testing, open dates end up being “no more than very good guesses or industry practice.” 161 The 2003 report prepared for the FDA noted that creating a mandatory national open dating system, which would standardize date labeling practices across the nation, could also present an opportunity to require manufacturers to implement more rigorous shelf-life testing. 162 The variability of how dates are chosen and expressed is also reflected in FDA’s Food Label and Package Survey from 2000-2001, which found that just under 55 percent of food products sold had any kind of date label. 163 Out of that 55 percent, Figure 6 shows the breakdown of the label types that were employed. It is possible that dating practices have increased since this survey, particularly after WalMart began requiring its suppliers to utilize “best if used by” dates in 2004. 164 Even when given a more limited scope of date label terminology to choose from, the issue of food waste persists. For example, in the United Kingdom, manufacturers are bound under Directive 2000/13/EC of the European Parliament and of the Council (E.U. Food Labeling Directive) to include either a quality-based “best before” date or a safety- based “use by” date. 166 However, it remains up to the industry

to determine which of those two terms to use, leading to inconsistencies in the labeling of similar products, as evidenced by this finding from a United Kingdom industry report:

75 percent of yogurt lines were marked with a “use by” date and 25 percent with a “best before” date. In conversations with retail food technologists, it was explained that some products like yogurts, fruit juices and hard cheeses do not necessarily constitute food safety risks but simply spoil and therefore may not need to have a “use by” date applied at all. 167

Further, industry actors are often more likely to include “use by” dates (defined as safety dates) on products that would merit a “best before” date (defined as quality date), causing further unnecessary waste because the United Kingdom bans the sale of food products after the “use by” date. 168 In 2011, in response to the persistently high rates of food waste, the U.K. Department for Environment, Food and Rural Affairs (DEFRA) issued “Guidance on the application of date labels to food” to help industry comply with the E.U. Food Labeling Directive using standardized methods. 169 The DEFRA Guidance provides a decision tree for industry actors that explains when to use which of the two mandatory dates, in order to try to streamline the date labeling used on similar products. 170 The Guidance also suggests that retailers should make “display until” and “sell-by” dates, which were unregulated and, as in the United States, used primarily as stock rotation tools, less visible to consumers in order to reduce unnecessary food waste due to consumer confusion regarding those particular dates. 171 Back in the United States, the end result of the lack of standardization of date labels is consumer confusion and inability to make informed decisions based on the

Thus, while open code dating appears on the surface to be an objective exercise, consumer preferences and brand protection color the way in which most of these dates are determined. in most cases, consumers have no way of knowing how a “sell by” or “use by” date has been defined or calculated, and to reiterate from above, the method of calculation may vary widely “by product type, manufacturer, and geography.”

Figure 6: Distribution of Label Date Types 165

DAte stAmPeD* 8.5 eXPiRAtioN 0.8 “Use BY” 31.2 “seLL BY” 14.1
DAte stAmPeD*
8.5
eXPiRAtioN
0.8
“Use BY”
31.2
“seLL BY”
14.1

0%

5%

10%

15%

20%

25%

30%

35%

* “Date stamped” refers to products stamped with a date, but without any accompanying words.

pAGE 18 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

information contained in date labels, which ultimately leads to food waste. Because consumers cannot understand what factors led to the selection and setting of label dates, often they mistakenly assume that these dates are tied to food safety, 172 whereas in reality their true function is to convey information about freshness and quality grounded in the preferences of consumers themselves and the particular brand protection practices of manufacturers. This misunderstanding also creates the opportunity for an unscrupulous manufacturer to maximize profits at the expense of consumers’ economic interests. The fact that consumers and stores throw away products unnecessarily can lead to increased profits for manufacturers if consumers are purchasing more products and doing so more often. According to at least one supply chain expert, some manufacturers may artificially shorten stated shelf lives for marketing reasons. 173 More empirical research on this topic would be helpful. The current system provides few checks to prevent manufacturers from engaging in such a practice.

CoNSumEr CoNFuSioN AND miSiNTErprETATioN oF LiNk To FooD SAFETy

The current food dating system leads to consumer confusion and misinterpretation in two fundamental ways. On one hand, evidence suggests that consumer overreliance on label dates results in food being wasted because of safety concerns that are not founded on actual risks. At the same time, such overreliance can also cause consumers to ignore more relevant risk factors affecting food safety, including the time and temperature control, as discussed further below. Label dates thus create a false (and potentially dangerous) sense of security for consumers who uncritically consume foods before their marked expiration date. 174 Thus, neither the public’s health nor resource conservation are well-served by the current date labeling system.

mistaken belief That past-Date Food is unsafe to Consume

Although most date labels are intended as indicators of freshness and quality, 175 many consumers mistakenly believe that they are indicators of safety. 176 A 2007 survey of U.S. adults funded by USDA’s National Integrated Food Safety Initiative of the Cooperative State Research, Education, and Extension Service (CREES) found that many of the respondents could not identify the general meanings of different open dates, with fewer than half (44 percent) correctly describing the meaning of the “sell by” date and only 18 percent correctly indicating understanding of the “use by” date. 177 In addition to this substantial confusion, 25 percent had the misconception that “sell by” date identifies the last day on which a product can be consumed, 178 rather than an inventory-control date that simply recommends how long a product should be displayed on the shelf vis-à-vis newer products. 179 A separate survey by the FMI found that 91 percent of consumers reported that at least occasionally they had discarded food past its “sell by” date out of concern for the product’s safety, with 25 percent reporting that they always did so. 180 Moreover, a report sponsored by the

did so. 1 8 0 Moreover, a report sponsored by the National Advisory Committee on Microbiological

National Advisory Committee on Microbiological Criteria for Foods (NACMCF) and several federal agencies 181 highlighted that “54% of consumers believed that eating food past its sell by/use by date constituted a health risk.” 182 Other studies found that a majority of respondents believe either that food is no longer safe to be sold 183 or that it is no longer safe to be consumed after its open label date. 184 Individuals from all age and income groups are confused about the current system of date labels. 185 In fact, the current date labeling system does not address safety, nor was that ever its main impetus. As referenced previously, the OTA’s landmark report on open code dating from 1979 concluded:

There is little or no benefit derived from open dating in terms of improved microbiological safety of foods. For foods in general, microbiological safety hazards are a result of processing failures, contamination after processing, and abuses in storage and handling. These factors are usually independent of the age of the product and have little relationship to an open date. 186

USDA affirms that “even if the date expires during home storage, a product should be safe, wholesome and of good quality if handled properly and kept at 40°F or below.” 187 Echoing this assertion, the FDA’s Center for Food Safety and Applied Nutrition (CFSAN) has noted that most foods, when kept in optimal storage conditions, are safe to eat and of acceptable quality for periods of time past the label date. 188 Other studies also show there is no direct correlation between food safety and date labels. In the United Kingdom,

USDA affirms that “even if the date expires during home storage, a product should be safe, wholesome and of good quality if handled properly and kept at 40°F or below.”

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representatives from retail and manufacturing compiled a report with a wide-ranging review of date labels, consumer safety, and food waste. The report, published in 2011, found no direct evidence linking foodborne illness in the United Kingdom to consumption of food past its expiration date. 189 Food safety experts agree that absent time/ temperature abuse, when food is allowed to remain too long at temperatures favorable to the growth of foodborne microorganisms, many food products will be safe past their date labels, although there are exceptions for certain classes of “ready-to-eat” perishable foods and foods to be consumed by certain susceptible populations, 190 both of which are discussed below. Quality-based date labels are not relevant food safety indicators because a food will generally “deteriorate in quality to the point that it would not be palatable to eat before there [is] an increase in the level of food safety risk.” 191 Quality-based label dates are generally set far before this spoilage point, meaning that there is a significant amount of time past the label date during which the food is still safe to eat. The incredible variation between state and local regulations regarding date labeling and the sale of food after the label date further supports the conclusion that the use of these dates does not advance public health in a meaningful way. While some states, like Massachusetts, regulate date labeling and sale after some date labels aggressively, a significant number of states, including New York, leave the field completely unregulated. Given that the same food products are no more or less hazardous in different states, it appears that at least some states are pursuing date labeling policies that lack robust empirical support. If persuasive evidence comes to light showing that there is a proven correlation between label dates and food safety, then all jurisdictions should adopt similar regulations. Alternatively, and more realistically, jurisdictions with more stringent date labeling requirements should review whether their regulations are actually designed to address food safety risks. Further research on the relative rates of foodborne illnesses in states that have restrictions on sale after date versus those that do not may be instructive on the level of protection that those regulations actually provide.

mistaken belief that pre-Date Food is Always Safe to Consume

While the mistaken belief that past-date foods are unsafe leads directly to food waste, overreliance on date labels may also have a detrimental effect on consumer health and safety. When consumers put undue faith in date labels, they may actually ignore more salient determinants of food safety, putting themselves at risk. Specifically, when consumers rely on a date label that emphasizes a product’s estimated lifespan without any accompanying information about the storage temperature or conditions under which the food was or should be kept, they are acting without critical information. A label date, if it is even designed to communicate safety, could truly only convey meaningful safety information if it were presented in conjunction with the time/temperature history of the product, meaning

how long and at what temperatures the food was stored. 192 Consumers often do not understand the relationship of time and temperature to safety; many people do not realize that the amount of time food spends in the danger zone (40 o to

120 o degrees Fahrenheit) is the main criterion they should use to evaluate food safety, rather than total storage time. 193 When food is left at unsafe temperatures for too long or is otherwise compromised, an open date becomes essentially meaningless, but consumers may trust the label date and use the product anyway. 194 The 1979 OTA report specifically expressed this concern, stating that date labels might disserve consumers by giving them a false sense of security. 195

A 2011 government report out of the United Kingdom also

recognized the possibility that the “proliferation of ‘use by’ dated products increases risk for consumers by diluting key

food safety messages.” 196 This worry about false confidence

is borne out in a study reporting that more than half of all

American adults think the “use by” date is an indicator of microbiological safety. 197

A Different Case: Listeria Monocytogenes and refrigerated ready-to-Eat Foods

There is one area of food safety concern that does implicate

date labeling as a potential regulatory solution: the risk of Listeria monocytogenes in ready-to-eat-foods. According to FDA’s Center for Food Safety and Applied Nutrition, Listeria

is “a bacterium that occurs widely in both agricultural .

and food processing environments.” 198 If ingested by humans, the bacterium can cause listeriosis, a potentially life-threatening infection. 199 For most foodborne pathogens, “the duration of refrigerated storage is not a major factor in foodborne illness.” 200 But in the case of food contaminated by Listeria, the length of refrigerated storage time is a factor, 201 since this organism can grow and multiply even while under refrigeration. 202 For this reason, the federal government identified Listeria as a pathogen for which a safety-based “use by” date label could be a useful preventive tool. 203

by” date label could be a useful preventive tool. 2 0 3 pAGE 20 | The

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However, because Listeria is destroyed upon cooking, this risk is generally limited to ready-to-eat foods that are not heated before consumption. 204 Indeed, of the 14 large-scale foodborne listeriosis outbreaks reported to the Centers for Disease Control and Prevention (CDC) between 1973 and 2000, 205 almost all were known or suspected to have involved refrigerated ready-to-eat foods. 206 While Listeria in ready-to-eat-foods is a legitimate problem in the food supply, this concern does not justify, nor is it addressed by, the current date labeling system. Listeria concerns in ready-to-eat foods could be more effectively addressed using targeted, well-tailored interventions that might include a date that explicitly indicates when the food is safe to consume, but would also have other information beyond just the date. Such interventions could integrate important food safety considerations at all stages of the supply chain, like the prevention of time/temperature abuse, 207 which is not assured by the imposition of date labels alone. Federally-regulated open dating may be appropriate for discrete categories of foods that pose a unique public health risk, such as ready-to-eat products. But the use of specialized regulations applicable only to such high-risk foods would better protect consumers if they allowed for consumers to distinguish between truly pertinent safety labels and generic, quality-based labels. Indeed, recognizing the dangers inherent in ready-to-eat foods, FDA has already promulgated regulatory guidance focusing on this category in the FDA Food Code. 208 The Food Code takes a holistic approach to the processing and handling of ready-to-eat foods along the supply chain, and provides specific time/temperature guidelines for the holding and consumption of ready-to- eat foods at the retail level. 209 Date labeling requirements constitute one element of this integrated approach 210 and complement the more important goals of minimizing Listeria contamination and time/temperature abuse. 211 It is even possible to imagine finer-grained distinctions being made within the category of ready-to-eat foods, allowing for better-tailored and effective date labels. This is because certain categories of ready-to-eat foods that have been found to support the growth of Listeria carry a much higher risk than others. When CFSAN conducted a quantitative assessment of the relative risk of 23 food categories with a documented history of Listeria contamination, only two categories were designated as being at “very high risk” of contamination: “Deli Meats” and “Frankfurters, Not Reheated.” 212 Categories with a “very low risk” included “Hard Cheese,” “Ice Cream and Other Frozen Dairy Products,” and “Processed Cheese.” 213 While foods posing a very high risk necessitated “immediate attention in relation to the national goal for reducing the incidence of foodborne illness,” very low risk foods were deemed “highly unlikely to be a significant source of foodborne listeriosis” absent “a gross error in their manufacture.” 214 Thus, even according to FDA’s own research, Listeria- related food safety risks do not extend to every product type within the ready-to- eat category. Finally, but no less importantly, it should be noted that serious illness from Listeria occurs almost exclusively in susceptible populations like the elderly, those with

compromised immune systems, and babies in utero. 215 It may therefore make more sense to target those populations

specifically. For example, Connecticut’s food safety regulations allow food service establishments to serve raw or undercooked items, but make explicit that such exemption does not apply in the case of “food service establishments serving highly susceptible populations such as immuno-compromised individuals or older adults in hospitals, nursing homes, or

similar health care facilities

facility that provides custodial care.” 216 Labels could also carry

population-specific messaging. Education is important as well, such as when government agencies advise pregnant women to avoid deli meats and unpasteurized cheeses because of the Listeria risk. 217 As laid out in this section, it is possible to address product- specific food safety concerns (e.g., for ready-to-eat foods) by using clear, targeted interventions, including standardized, effective date labeling, 218 without creating unnecessary and unwanted collateral effects across the entire food system. 219 For most foods, including many ready-to-eat foods, the current date labeling framework does not advance public health in any significant way. For the reasons presented above, food safety considerations should not constitute a primary justification for maintaining present date labeling practices. Instead, specific practices should be tailored to ready-to-eat-foods to help consumers make better food safety choices with regard to those high-risk foods.

and preschool age children in a

CoNSumEr FooD wASTE

Consumer confusion surrounding the meaning of date labels

also contributes to the high rate of waste of edible food. Food loss has been defined as the “edible amount of food available

not consumed.” 220 Food waste

is a subset of food loss, representing the amount of edible food that goes unconsumed due to human action or inaction. 221 By conservative estimates, U.S. food losses amount to 160 billion pounds of food annually. 222 This waste has important economic, environmental, and ethical implications. To start, it is estimated that per capita food loss is $390 per year, putting the total food loss for a family of four at $1,560

annually. 223 One expert in consumer food waste thought that figure was too low because it did not capture the estimated 10 percent of consumer food lost to the garbage disposal. 224 With that additional portion factored in, food losses could cost the average American family $2,275 annually. 225 On the environmental front, studies show that more than 25 percent of all the fresh water used in the United States is squandered on the production of wasted food. 226 The EPA reports that over 34 million metric tons of food scraps were generated in 2010, 227 almost all of which went into the waste stream, making food the greatest source of waste headed to landfills in the United States at 21 percent of all landfill input. 228 The most alarming statistic is that food loss in the United States has been on the rise for the past several decades, with per capita food loss increasing by 50 percent since 1974. 229 Recent studies conducted in the United Kingdom have explored the connection between food waste and food

for human consumption but

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date labeling. A report published in 2011 by WRAP, a not- for-profit organization that works to reduce food waste in the United Kingdom and other European countries, reported that confusion over date labeling accounts for an estimated 20 percent of avoidable household food waste. 230 Comprehensive research on the connection between date labels and food waste has not yet been conducted in the United States. As the previous section makes clear, the majority of American consumers do not understand date labels, with a significant chunk of them mistakenly believing that eating food past its “sell by” or “use by” date poses a health risk. 231 Consumers’ discarding of food on or before the “sell by” date offers further evidence of food waste that is linked to date labeling because that date does not in fact indicate the food is spoiled. In a 1987 study, 17 percent of weekly household waste was reported discarded because it was “past a pull date, an expiration date, or, in some cases, a series of production code numbers misinterpreted as a date,” or “because the consumer believed that the food was too old by some other time standard.” 232 Thus, while more research would help to further define the scale of the problem, it is already quite clear that date labels play a central role in generating food waste among U.S. consumers.

ECoNomiC LoSSES AND iNEFFiCiENCiES For mANuFACTurErS, DiSTribuTorS, AND rETAiLErS

Because of the consumer misperceptions that surround the meaning of date labels, the practice of open dating usually results in a higher rate of unsaleable—and hence often discarded—food for retail stores. 233 In the United States, an industry initiative estimated about $900 million worth of inventory was removed from the supply chain in 2001 due to date code expiration and identified the lack of standardization around date coding as one of the five factors driving that loss. 234 This food represents a direct economic loss for retailers, and ultimately could be a cost born by consumers in the price of goods. Aside from the costs of wasted food, inconsistent date labeling regulations that are not benefiting public health can also make food businesses less efficient. Retail experts have reported that it can be difficult for large-scale food corporations to comply with divergent state regulations. 235 Indeed, one of the driving motivations for the NCWM when it created the Uniform Open Dating Regulation was the fear that variation between state regulations on date labels would hamper the “orderly flow of commerce” among states. 236 With the current regulations, companies often must use separate packaging lines for products entering different jurisdictions in order to comply with these divergent state laws. Further, food packers and manufacturers have an incentive to follow the strictest state labeling regulations for all of their products, even for products sold in states with no regulations. Because no states prohibit date labels, this method can be less costly for companies. However, this means that date labels could be having the same confusing impacts even in states without regulations because products in all states wind up with labels that are not protecting consumers.

CHALLENGES For FooD rECovEry iNiTiATivES AND ANTi-HuNGEr orGANizATioNS

The food waste that is generated by date labeling practices can and often is offset by back-end efforts to reclaim, rescue, or repurpose past-date foods in order to prevent them from being discarded. One approach to mitigating food waste is to divert expired foods to anti-hunger organizations that can process and distribute these products to food-insecure individuals and families. Safe, wholesome past-date products constitute a significant portion of the food relief that is distributed by food banks and soup kitchens. 237 As well, there are a number of new organizations that specialize in linking anti-hunger initiatives with past-date or otherwise unsaleable foods. 238 Another way that retailers can mitigate food waste is by selling past-date products at lower prices through a designated “discount” section of the store 239 or, alternatively, to external businesses including freestanding expired food stores 240 or expired food auctions. 241 These retail avenues give savvy, price-conscious consumers the option of voluntarily foregoing the quality standards indicated by a date label in exchange for often significant cost savings. Despite these promising initiatives, many of the same distorting and disorienting effects caused by date labels in the traditional retail context can also be present in the past- date retail market. Consumer confusion surrounding the meaning of date labels and their relationship to food safety severely limits the market for past-date products. Experts in food recovery 242 and food waste 243 report that there is also widespread confusion amongst anti-hunger program administrators over the meaning of various date labels. Food safety officers working with anti-hunger organizations must consequently spend considerable time and effort educating workers about the date labeling system, and those workers must in turn educate clients and end-users when they express concerns or uncertainty about the products they are receiving. 244 Laws in 20 states plus the District of Columbia also explicitly regulate the sale (and sometimes even donation) of foods beyond their label date (see Figure 3). Donors may also be concerned about their liability associated with food safety, even though they are protected by state and federal “Good Samaritan” laws that exist to protect from liability the corporations and individuals who donate food to non-profit organizations. 245 Finally, state and local food inspectors have been known to frustrate food recovery efforts on the basis of questionable—or, in some cases, clearly mistaken—interpretations of how local health codes and food safety laws view past-date foods. 246 For example, an inspector may assume that a past-date product cannot be safe or wholesome, even though date labels alone are not reliable indicators of safety or wholesomeness. All of these complications stemming from date labeling practices make it more difficult to use food recovery methods to mitigate the food waste that is caused by those practices.

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CHAPTER 4: rECommENDATioNS

A new system for food date labeling in the United States is needed. This system

should have uniform language that clearly communicates to consumers the

meaning of dates as well as other food safety and handling information. The

system should be the same throughout the United States for foods within the same category of products, and to the extent reasonable, across all classes of food products.

the extent reasonable, across all classes of food products. The recommendations proposed here respond directly to

The recommendations proposed here respond directly to the myriad problems linked to the current date labeling legal framework. They are broken into two sections. The first section proposes changes to date labeling practices in order to standardize the labels, reduce consumer confusion, improve consumer food safety, and decrease food waste. The second section describes the activities that specific actors, such as industry players, governmental bodies, and consumers, should take to spur date label reform and thus improve food safety and decrease food waste.

STANDArDizE AND CLAriFy THE FooD DATE LAbELiNG SySTEm ACroSS THE uNiTED STATES

1. Make “Sell By” Dates Invisible to the Consumer. “Sell by” dates are designed for stock control by retailers, as a business-to-business communication between manufacturers and retailers. As described above, they

offer no useful guidance to consumers once they have brought foods home, and are often misinterpreted by consumers as safety dates. Guidance on when to eat the product may be helpful to consumers, but guidance on when to sell it is not. Affixing these dates in a closed date format, per prior industry practice, 247 will allow for efficient retail stock rotation without unnecessarily confusing consumers. Those same products could then display dates that do provide useful guidance to the consumer, such as those described in the next recommendation.

The British approach is illustrative here. As described above, food products in the United Kingdom are required to include “use by” or “best before” date labels under the E.U. Food Labeling Directive. 248 But despite the Directive’s requirements to use only two qualifying prefixes before date labels, U.K. law still allowed food companies the discretion to mark food products with

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“display until” or “sell by” dates in order to facilitate stock control. 249 Research indicated that consumers were confused when faced with “sell by” or “display until” dates, and 29 percent of consumers could not correctly identify their meaning. 250 To solve this confusion, the DEFRA Guidance mentioned above recommended that retailers make “sell by” and “display until” dates less visible to the consumer. 251 While the change is too recent to determine its impact, a number of experts in the U.S. retail sector have suggested a similar change. 252

2. Establish A Reliable, Coherent, and Uniform Consumer- Facing Dating System. There is little to no benefit from states regulating food product dating differently from one another, or from companies independently determining the language that will be used on date labels, if this discretion is not in fact leading to any real health or safety benefits. In fact, a joint industry task force examining this issue in 2007 concluded that “industry and consumers would benefit from a more common approach to how [open date] information is communicated and to how the supply chain uses this information to manage inventory.” 253

The work of various actors, including industry members, policymakers, food safety experts, consumer behavior experts, and consumer advocates, is needed to establish the most effective system of consumer-facing dates. A new system should include the following components:

n Establish standard, clear language for both quality- based and safety-based date labels. Language used on food products should more clearly and accurately communicate a date’s meaning. Consumer research should be used to determine the exact wording that best communicates these meanings, but the language should be standardized, unambiguous, and should clearly delineate between safety-based and quality-based dates. For example, for foods where safety may play a role in the date, “safe if used by” more clearly communicates the safety aspect as compared to “use by.” In addition, more descriptive, explicit statements should be used. For example, instead of short phrases like “best before” for quality- based labels, a phrase such as “Peak quality [or freshness] guaranteed before MMDDYY” would better convey relevant information. 254 If space constraints on packages become problematic, standardized symbols or visual cues may also be of use to communicate these concepts.

One additional option would be for government to require, or industry to voluntarily adopt, boilerplate disclaimers on any quality-based date labels. For example, manufacturers could include a statement that “This date is an indicator of quality. Product safety has not been tested or linked with this date,” or a statement that “Any dates displayed are not safety dates. They have not been evaluated by FDA.” While this may require more space on packages, similar disclaimers are already employed by FDA in other regulatory contexts. 255

n

Include “freeze by” dates and freezing information where applicable. Including “freeze by” dates on food products, especially perishable products, could reduce the amount of food wasted by consumers. According to USDA FSIS, “once a perishable product is frozen, it doesn’t matter if the date expires because foods kept frozen continuously are safe indefinitely.” 256 For consumers concerned about being unable to use a food product before its expiration date, or concerned that such a product may deteriorate in quality after the expiration date, the presence of a complementary “freeze by” label could serve as a reminder to freeze the product instead of discarding it. The best expression for this may be “use or freeze by.”

More generally, it is important to raise consumer awareness of the benefits of freezing food and the abundance of different food products that can be successfully frozen. In the United Kingdom, food products that are “suitable for home freezing” are marked with a snowflake label. 257 American food companies or retailers could implement a similar symbol to communicate this information to consumers and provide helpful guidance on how to maintain the product’s quality when freezing it. Furthermore, education campaigns aiming to reduce food waste should focus on reiterating the benefits of freezing as one component of their message.

n

Remove or replace quality-based dates on non- perishable, shelf-stable products. In order to reduce food waste, it may be most effective to remove quality- based dates, such as “best before” on non-perishable, shelf-stable foods.

Even if quality-based dates were removed, information on shelf life after opening should still be communicated, such as “Best within XX days of opening.” As an alternative, it may be desirable to provide consumers with a “pack date” and a general estimate of the product’s shelf-life (for example, “maximum quality XX months after pack date”) on certain products to help consumers make informed and independent quality-based judgments.

Where there is not a safety concern, such an approach would encourage consumers to make judgments about freshness and quality by actively investigating the food product at issue instead of relying on an industry-provided label. This approach would make it more likely that food is only disposed of when it has actually degraded to a quality level that the individual consumer finds to be personally unacceptable, and it would circumvent the incentive that manufacturers and retailers have to set date labels too conservatively. In addition, this practice would place more weight on labels placed on products that raise safety concerns, such as ready-to-eat-foods that pose a heightened Listeria risk.

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n

Ensure date labels are clearly and predictably located on packages. Consumers should be able to easily locate date label information on packages. One option would be the creation of a “safe handling” information box on food products, akin to the “nutrition facts” panel. This safe handling box could include information about the pack date, recommended best quality date or use by date, depending on the type of food, guidance for freezing, and information about how best to store the product.

n

Employ more transparent methods for selecting dates. Assuring that date labels reflect the true shelf- life of products would give consumers who rely on date labels the maximum amount of time to consume their purchases before the date expires. Those who set label dates could be required where practical, to engage in quantitative shelf-life testing to determine a product’s label date. There are currently no such requirements at the federal level, except in the case of infant formula. 258 An even more robust version of this requirement would require the testing to be done by some kind of independent body, external to the entity setting the date. Alternatively, manufacturers and retailers could be required to use shelf-life guidelines for specific foods that are pre-set by the government or by authorized private entities.

3.

Increase the Use of Safe Handling Instructions and “Smart Labels.” As stated above, experts agree that safe handling is the most important factor in keeping food safe. Therefore, including safe handling instructions on packages or other clear, pertinent food safety indicators can help ensure a better consumer experience.

The federal government has already started to explore the possibility of creating a system of labels that independently convey relevant food safety information; these labels would likely emphasize the central importance of storage temperature and storage conditions in improving food safety outcomes. 259 For example, raw meat and poultry packages must be labeled with “Safe Handling Instructions” that remind consumers about the importance of storage temperature, cross-contamination, thorough cooking, and safe holding. 260

Recognizing the limitations of date labels without any additional knowledge of a food product’s temperature history, several experts have proposed more sophisticated “smart labels” that use technology to indicate the actual storage history of a product, such as the duration at each temperature. 261 One example of this is a “Time-Temperature Integrator” (TTI), 262 a small tag attached to a food product that changes color as a function of time-temperature history. 263 When using a TTI, manufacturers could use a label statement like “‘Use by MM-DD-YY unless tag turns grey.’” 264 A smart label would be more expensive than a date label alone,

but it could be an important tool for conveying useful safety information to consumers while reducing food waste. This technology would be particularly beneficial to use on those foods that pose a high risk to consumer health, such as ready-to-eat foods. In addition to the TTI, other models have been piloted or are in development in the United States and internationally. 265 Increased government funding and research support could help in the development of truly cost-effective smart labels and thereby decrease food safety concerns for those foods identified as being most risky.

Another potential way to convey a product’s manufacturing or storage information would be to use Quick Response Codes (“QR Codes”) to convey any

such relevant additional information. QR codes allow

a user to “read” a barcode with their smartphone and

then be transported to a website. This would allow the manufacturer to deliver ample information without the restrictions of on-package space constraints and would also provide the manufacturer with an additional touch point to the consumer.

THE roLE oF iNDuSTry, GovErNmENT, AND CoNSumErS

Congress, federal administrative agencies, state legislatures, state administrative agencies, the food industry, the non-governmental sector, and consumers all have a role to play in reducing food waste and reforming the American date labeling regime and can start acting now. Solutions targeted at each stakeholder group are included below.

1. We encourage food industry actors to commit to:

n

Converting to a closed-date system for sell by information. Retailers, distributors, and manufacturers alike should convert all “sell by” or “display until” dates to a closed-date system. With a majority of consumers mistakenly believing “sell by” dates indicate the last day a food can be safely consumed, converting this information to a coded format will avert a significant amount of premature food disposal. This change can and should happen immediately.

n

Establishing a more standardized, easily understandable consumer-facing dating system.

As time and care will be necessary to establish the most effective system of consumer-facing dates, we encourage businesses to jointly commit to creating

a

more standardized, less confusing system of date

labeling that incorporates the guidelines outlined above. Perfecting such a system will take the input of various parties, and could be done by a multi-stakeholder task force or working group including industry members, policymakers, food safety experts, consumer behavior experts, and consumer advocates.

n

Selling or donating near-expiration or expired products. Retailers should create dedicated in-store discount shelves for food near or just past its label date

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and, alternatively, sell or donate past-date or soon to be past-date foods to businesses and liquidators that specialize in selling past-date products. The benefits of these practices are threefold: retailers get to recover some revenue that would otherwise never materialize; consumers save money on perfectly edible food, albeit with the knowledge that their purchases may not be at peak quality; and more food is kept out of the waste stream. Moreover, a variety of interventions could be used to help food banks and food recovery organizations utilize past-date foods more efficiently. These changes include disseminating more accurate information about the meaning of date labels, as well as enhancing federal and state Good Samaritan protections.

n

Educating consumers on the meaning of expiration dates and on safe food handling. Point-of-sale displays, informational pamphlets, and online resources are all ways that food companies can help to educate consumers on how to handle food properly and when it can safely be consumed. These materials should distinguish between date labels that measure quality and those that indicate safety to reduce mistaken reliance on quality labels for judgments of food safety risk. 266 Because consumers are still wary about consuming food at or near its label date, the viability of past-date food sales, as well as the success of any new standardized date label regime, is contingent upon increased consumer awareness and education.

2.

We encourage policy change to be undertaken by the following actors:

n

Congress: The most straightforward way to create a uniform date labeling regime would be for Congress to establish a federal law that creates a uniform date labeling framework across all states and all food products. As discussed in the History section, past congressional efforts aimed to create a mandatory federal regime by empowering FDA and USDA to create regulatory requirements. The creation of a similar legislative mandate could be pursued today.

n

FDA, USDA, and other relevant federal agencies: As described above, under the Food, Drug and Cosmetic Act, FDA has both the authority and the responsibility to ensure product labels are not misleading. 267 Like FDA, USDA has existing authority to protect consumers from misleading information on the products under its purview. Given the confusion and misinterpretation that persists, FDA and USDA already have sufficient statutory power to regulate date labels; if they believe they need additional authority to regulate date labels, they should identify any specific gaps. They should then use such authority to promulgate regulations that protect consumers from the misleading information that results from the wide variety of date labeling practices utilized by industry either voluntarily or in response to diverse state regulations. 268

In order to ensure consistency across products, FDA and USDA should establish a coordinated approach. Congress has given each agency equal power to regulate misbranded food, but in order to improve consumer understanding of date labels, this power should be used to create standardized date labeling requirements that apply in the same manner to all food products, regardless of which agency has jurisdiction. This will help to ensure that consumers can be educated on the meaning of such labels and thus increase food safety and reduce food waste. Once such a new system of date labeling is developed, it should be accompanied by a strong consumer awareness campaign to educate the public on the meaning of the new date labels. Other agencies involved in ensuring food safety, such as the Centers for Disease Control and Prevention, can assist in these educational efforts as well.

In addition (or in the meantime), since most states adopt some version of the FDA Food Code, FDA should strengthen its Food Code guidance, incorporate the recommendations in this report, and expand the guidance to cover all food products and increase consistency across products, instead of limiting it to only shellfish, refrigerated ready-to-eat foods, and reduced- oxygen packaged foods.

n

National Conference Weights and Measures/National Institute of Standards and Technology: We encourage the NCWM and NIST to revise the Model Uniform Open Dating Regulation published in NIST Handbook 130 to disallow open dating of “sell by” information and create more specific guidance for open dates, incorporating the suggestions in this report to ensure the best outcomes for consumers. Creating a multi-stakeholder task force to tackle the issue could help address differing points of view. The NCWM standards exist as a model guide that could be used as a starting point for crafting new federal guidelines, once they are updated according to these recommendations. Significant benefits of the NCWM approach include: (1) limiting the types of permissible date labels and (2) setting baseline requirements for the calculation of label dates. 269

n

States: In lieu of overarching federal regulation, creating more consistency across state laws would be another way to improve date labeling rules in all states while creating more nationwide uniformity. We encourage states to coordinate in adopting standard regulations. If NIST Handbook 130 on Uniform Open Dating Regulation is amended, states could follow that guidance. If not, states should adopt laws that call for companies to make the changes recommended in the previous section. At a minimum, states and localities with particularly strict date labeling regulations should consider repealing those regulations that create barriers to uniformity if they do not have health benefits. For example, 20 states restrict the sale or distribution of past-date foods and thereby make food recovery efforts much more difficult.

pAGE 26 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

n

All levels of government: We encourage all levels of government to conduct public education campaigns to educate consumers on the meaning of date labels, proper food handling, and ways to determine when food is safe to eat.

3.

We encourage consumers and consumer-facing agencies and organizations to act now by:

n

Educating themselves and their constituents on the meaning of date labels. As described above, a majority of Americans mistakenly believe that date labels are indicators of safety rather than indicators of quality. 270 Learning what dates actually mean will help consumers to make better food safety decisions, and will also reduce premature disposal of products, saving people money in the process. In particular, consumers should educate themselves about “sell by” dates, which are indicators of stock rotation and not of product quality or safety.

n

Educating themselves and their constituents on safe food handling and consumption, including proper refrigeration temperatures. Many consumers are not aware that storage temperature is the main factor impacting food safety, rather than the amount of time that has passed since the product’s production. 271 Understanding the time/temperature relationship

to food safety and the critical importance of keeping refrigerators at temperatures below 40° Fahrenheit is key to preserving food safely. 272 People under 35 years of age have been identified as a demographic that could particularly benefit from more intensive food safety education. 273

n Learning to tell when food can still be safely consumed. There are a variety of resources to help consumers learn how to assess the safety of food. These include the FMI’s Foodkeeper Guide, which lists generic shelf lives of common products, 274 and resources that indicate visual red flags for microbial contamination, such as USDA’s Kitchen Companion Safe Food Handbook. 275 These types of tools can help consumers reduce their reliance on date labels for food safety judgments and make better food safety decisions.

We have a significant challenge ahead in order to make a dent in the 40 percent of food that currently goes uneaten in the United States. There is no reason to wait—improving upon the convoluted and ineffective system of date labels is one of the more straightforward ways we can address this issue, while providing a service to consumers by improving both food safety outcomes and economic impacts.

pAGE 27 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

APPEnDIx A: CoNGrESSioNAL DELEGATioN oF FooD LAbELiNG AuTHoriTy To AGENCiES

FooD AND DruG ADmiNiSTrATioN Food, Drug and Cosmetic Act. 21 U.S.C. §§ 301 et seq. (2012). Definition of misleading. 21 U.S.C. § 321(n) (2012).

(n) If an article is alleged to be misbranded because the labeling or advertising is misleading, then in determining whether

the labeling or advertising is misleading there shall be taken into account (among other things) not only representations made or suggested by statement, word, design, device, or any combination thereof, but also the extent to which the labeling or advertising fails to reveal facts material in the light of such representations or material with respect to consequences which may result from the use of the article to which the labeling or advertising relates under the conditions of use prescribed in the labeling or advertising thereof or under such conditions of use as are customary or usual.

Prohibited acts. 21 U.S.C. § 331 (2012).

The adulteration or misbranding of any food, drug, device,

tobacco product, or cosmetic in interstate commerce. Food “shall be deemed to be misbranded

or misleading in any particular, or (2) in the case of a food to which section 350 of this title applies, its advertising is false or misleading in a material respect or its labeling is in violation of section 350(b)(2) of this title.

(b) The following acts and the causing thereof are prohibited

if (1) its labeling is false

Definitions and standards for food. 21 U.S.C. § 341 (2012).

Whenever in the judgment of the Secretary such action will promote honesty and fair dealing in the interest of consumers, he shall promulgate regulations fixing and establishing for any food, under its common or usual name so far as practicable, a reasonable definition and standard of identity, a reasonable standard of quality, or reasonable standards of fill of container.

Misbranded food. 21 U.S.C. § 343 (2012).

A food shall be deemed to be misbranded—(a) False or misleading label. If (1) its labeling is false or misleading in any particular, or (2) in the case of a food to which section 411 [21 USCS § 350] applies, its advertising is false or misleading in a material respect or its labeling is in violation of section 411(b)(2) [21 USCS § 350(b)(2)].

Infant Formula Act. 21 U.S.C. § 350a (2012).

(a) Adulteration

An infant formula, including an infant formula powder, shall be deemed to be adulterated if—

(1) such infant formula does not provide nutrients as required by subsection (i) of this section,

(2) such infant formula does not meet the quality factor requirements prescribed by the Secretary under subsection (b)(1) of this section, or

(3) the processing of such infant formula is not in compliance with the good manufacturing practices and the quality control procedures prescribed by the Secretary under subsection (b)(2) of this section.

(b) Requirements for quality factors, good manufacturing practices, and retention of records

(1) The Secretary shall by regulation establish requirements for quality factors for infant formulas to the extent possible consistent with current scientific knowledge, including quality factor requirements for the nutrients required by subsection (i) of this section.

Labeling requirements, directions for use. 21 C.F.R. § 107.20 (2013).

(c) A “Use by

of the infant formula on the basis of tests or other information showing that the infant formula, until that date, under the conditions of handling, storage, preparation, and use prescribed by label directions, will: (1) when consumed, contain not less than the quantity of each nutrient, as set forth on its label; and (2) otherwise be of an acceptable quality (e.g., pass through an ordinary bottle nipple).

” date, the blank to be filled in with the month and year selected by the manufacturer, packer, or distributor

pAGE 28 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

u.S. DEpArTmENT oF AGriCuLTurE Poultry Products Inspection Act 21 U.S.C. §§ 451 et seq. (2012). Definition of misleading. 21 U.S.C. § 453(h) (2012).

(h) The term “misbranded” shall apply to any poultry product under one or more of the following circumstances:

(1) if its labeling is false or misleading in any particular.

Use of trade names; false or misleading marking or labeling; misleading form or size of container. 21 U.S.C. § 457 (2012).

(c) No article subject to this chapter shall be sold or offered for sale by any person in commerce, under any name or other

marking or labeling which is false or misleading, or in any container of a misleading form or size, but established trade names

and other marking and labeling and containers which are not false or misleading and which are approved by the Secretary are permitted.

False or misleading labeling or containers. 9 C.F.R. § 381.129 (2013).

(c) A calendar date may be shown on labeling when declared in accordance with the provisions of this paragraph:

(1) The calendar date shall express the month of the year and the day of the month for all products and also the year in

the case of products hermetically sealed in metal or glass containers, dried or frozen products, or any other products

that the Administrator finds should be labeled with the year because the distribution and marketing practices with respect to such products may cause a label without a year identification to be misleading.

(2) Immediately adjacent to the calendar date shall be a phrase explaining the meaning of such date in terms of

“packing” date, “sell by” date, or “use before” date, with or without a further qualifying phrase, e.g., “For Maximum Freshness” or “For Best Quality”, and such phrases shall be approved by the Administrator as prescribed in § 381.132.

Date of packing and date of processing; contents of cans. 9 C.F.R. § 381.126 (2013).

(a) Either the immediate container or the shipping container of all poultry food products shall be plainly and permanently

marked by code or otherwise with the date of packing. If calendar dating is used, it must be accompanied by an explanatory statement, as provided in § 381.129(c)(2).

(b) The immediate container for dressed poultry shall be marked with a lot number which shall be the number of the day of

the year on which the poultry was slaughtered or a coded number.

(c) All canned products shall be plainly and permanently marked, by code or otherwise, on the containers, with the identity of

the contents and date of canning, except that canned products packed in glass containers are not required to be marked with the date of canning if such information appears on the shipping container. If calendar dating is used, it must be accompanied by an explanatory statement, as provided in § 381.129(c)(2).

(d) If any marking is by code, the inspector in charge shall be informed as to its meaning.

Federal Meat Inspection Act. 21 U.S.C. §§ 601 et seq. (2012). Labeling, marking, and container requirements. 21 U.S.C. § 607 (2012).

(e) If the Secretary has reason to believe that any marking or labeling or the size or form of any container in use or proposed

for use with respect to any article subject to this subchapter is false or misleading in any particular, he may direct that such

use be withheld unless the marking, labeling, or container is modified in such manner as he may prescribe so that it will not be false or misleading.

False or misleading labeling or practices generally; specific prohibitions and requirements for labels and containers. 9 C.F.R. § 317.8 (2013).

(32) A calendar date may be shown on labeling when declared in accordance with the provisions of this subparagraph:

(i) The calendar date shall express the month of the year and the day of the month for all products and also the year in the case of products hermetically sealed in metal or glass containers, dried or frozen products, or any other products that the Administrator finds should be labeled with the year because the distribution and marketing practices with respect to such products may cause a label without a year identification to be misleading.

(ii) Immediately adjacent to the calendar date shall be a phrase explaining the meaning of such date, in terms of

pAGE 29 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

“packing” date, “sell by” date, or “use before” date, with or without a further qualifying phrase, e.g., “For Maximum Freshness” or “For Best Quality”, and such phrases shall be approved by the Administrator as prescribed in § 317.4.

False or misleading labeling or practices generally; specific prohibitions and requirements for labels and containers. 9 C.F.R. § 317.8 (2013).

(a) No product or any of its wrappers, packaging, or other containers shall bear any false or misleading marking, label, or other

labeling and no statement, word, picture, design, or device which conveys any false impression or gives any false indication of origin or quality or is otherwise false or misleading shall appear in any marking or other labeling. No product shall be wholly or partly enclosed in any wrapper, packaging, or other container that is so made, formed, or filled as to be misleading.

USDA Labeling Approval (Meat and Poultry). 9 C.F.R. § 317.4 (2013).

(a) No final labeling shall be used on any product unless the sketch labeling of such final labeling has been submitted for

approval to the Food Labeling Division, Regulatory Programs, Food Safety and Inspection Service, and approved by such division, accompanied by FSIS form, Application for Approval of Labels, Marking, and Devices, except for generically approved labeling authorized for use in § 317.5(b). The management of the official establishment or establishment certified under a foreign inspection system, in accordance with part 327 of this subchapter, must maintain a copy of all labeling used, along with the product formulation and processing procedure, in accordance with part 320 of this subchapter. Such records shall be made available to any duly authorized representative of the Secretary upon request.

(b) The Food Labeling Division shall permit submission for approval of only sketch labeling, as defined in § 317.4(d), for all

products, except as provided in § 317.5(b) (2)–(9) and except for temporary use of final labeling as prescribed in paragraph (f)

of this section.

(c) All labeling required to be submitted for approval as set forth in § 317.4(a) shall be submitted in duplicate to the Food

Labeling Division, Regulatory Programs, Food Safety and Inspection Service, U.S. Department of Agriculture, Washington, DC 20250. A parent company for a corporation may submit only one labeling application (in duplicate form) for a product produced in other establishments that are owned by the corporation.

(d) “Sketch” labeling is a printer’s proof or equivalent which clearly shows all labeling features, size, location, and indication

of final color, as specified in § 317.2. FSIS will accept sketches that are hand drawn, computer generated or other reasonable facsimiles that clearly reflect and project the final version of the labeling. Indication of final color may be met by: submission of a color sketch, submission of a sketch which indicates by descriptive language the final colors, or submission with the sketch of previously approved final labeling that indicates the final colors.

(e) Inserts, tags, liners, pasters, and like devices containing printed or graphic matter and for use on, or to be placed within,

containers and coverings of product shall be submitted for approval in the same manner as provided for labeling in § 317.4(a), except that such devices which contain no reference to product and bear no misleading feature shall be used without submission for approval as prescribed in § 317.5(b)(7).

(f)(1) Consistent with the requirements of this section, temporary approval for the use of a final label or other final labeling that may otherwise be deemed deficient in some particular may be granted by the Food Labeling Division. Temporary approvals may be granted for a period not to exceed 180 calendar days, under the following conditions:

(i) The proposed labeling would not misrepresent the product;

(ii) The use of the labeling would not present any potential health, safety, or dietary problems to the consumer;

(iii) Denial of the request would create undue economic hardship; and

(iv) An unfair competitive advantage would not result from the granting of the temporary approval.

(2) Extensions of temporary approvals may also be granted by the Food Labeling Division provided that the applicant demonstrates that new circumstances, meeting the above criteria, have developed since the original temporary approval was granted.

pAGE 30 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

(g) The inspector-in-charge shall approve meat carcass ink brands and meat food product ink and burning brands, which

comply with parts 312 and 316 of this subchapter.

Egg Products Inspection Act. 21 U.S.C. §§ 1031 et seq. (2012). False or misleading or use of nonapproved labeling or containers; determination by Secretary; procedures applicable; appeal. 21 U.S.C. §§ 1036 (2012).

(b) No labeling or container shall be used for egg products at official plants if it is false or misleading or has not been approved

as required by the regulations of the Secretary. If the Secretary has reason to believe that any labeling or the size or form of any

container in use or proposed for use with respect to egg products at any official plant is false or misleading in any particular, he may direct that such use be withheld unless the labeling or container is modified in such manner as he may prescribe so that it will not be false or misleading.

Perishable Agricultural Commodities Act. 7 U.S.C. § 499a et seq. (2012). Unfair conduct. 7 U.S.C.§ 499b (2012).

(4) For any commission merchant, dealer, or broker to make, for a fraudulent purpose, any false or misleading statement

in connection with any transaction involving any perishable agricultural commodity which is received in interstate or foreign commerce by such commission merchant, or bought or sold, or contracted to be bought, sold, or consigned, in such commerce by such dealer, or the purchase or sale of which in such commerce is negotiated by such broker; or to fail or refuse truly and correctly to account and make full payment promptly in respect of any transaction in any such commodity to the person with whom such transaction is had; or to fail, without reasonable cause, to perform any specification or duty, express or implied, arising out of any undertaking in connection with any such transaction; or to fail to maintain the trust as required under section 499e (c) of this title.

FEDErAL TrADE CommiSSioN Federal Trade Commission Act. 15 U.S.C. § 45 et seq. (2012). Declaration of unlawfulness; power to prohibit unfair practices; inapplicability to foreign trade. 15 U.S.C. § 45 (a) (2012).

(1) Unfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting

commerce, are hereby declared unlawful.

(2) The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks,

savings and loan institutions described in section 57a (f)(3) of this title, Federal credit unions described in section 57a (f)(4) of this title, common carriers subject to the Acts to regulate commerce, air carriers and foreign air carriers subject to part A of subtitle VII of title 49, and persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards Act, 1921, as amended [7 U.S.C. 181 et seq.], except as provided in section 406(b) of said Act [7 U.S.C. 227 (b)], from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.

Fair Packaging and Labeling Act. 15 U.S.C. § 1451 et seq. (2012). Scope of additional regulations. 15 U.S.C. § 1454 (2012).

(c) Whenever the promulgating authority determines that regulations containing prohibitions or requirements other than those

prescribed by section 1453 of this title are necessary to prevent the deception of consumers or to facilitate value comparisons as to any consumer commodity, such authority shall promulgate with respect to that commodity regulations effective

pAGE 31 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

APPEnDIx B: STATE rEquirEmENTS iN briEF; SupporTiNG CHArTS For FiGurES 2 AND 3.

Supporting Chart for Figure 2

 
   

DATE

     

DATE

 

STATE

NO

REQUIREMENT

LABELS

REQUIRED

FOODS FOR WHICH DATE IS REQUIRED

STATE

NO

REQUIREMENT

LABELS

REQUIRED

FOODS FOR WHICH DATE IS REQUIRED

ALABAmA

X

   

NevADA

 

X

milk; potentially

ALAsKA

 

X

shellfish

hazardous foods

     

Cream; prewrapped

ARiZoNA

 

X

eggs

NeW HAmPsHiRe

X

sandwiches

ARKANsAs

 

X

shellfish

NeW JeRseY

 

X

milk/dairy; shellfish

CALiFoRNiA

 

X

milk/dairy; shellfish

NeW meXiCo

 

X

milk/dairy

CoLoRADo

 

X

eggs

NeW YoRK

X

   

CoNNeCtiCUt

 

X

milk/dairy

NoRtH CARoLiNA

 

X

shellfish

DeLAWARe

 

X

shellfish

NoRtH DAKotA

 

X

shellfish

FLoRiDA

 

X

shellfish; milk/dairy

     

Packaged perishable

     

eggs; milk; shellfish;

oHio

X

foods; shellfish

GeoRGiA

X

prepackaged sandwiches

oKLAHomA

 

X

eggs; shellfish

     

Packaged perishable

HAWAii

 

X

milk

oReGoN

X

foods

iDAHo

X

   

PeNNsYLvANiA

 

X

milk/dairy; shellfish

iLLiNois

X

         

Packaged bakery

iNDiANA

 

X

eggs; shellfish

RHoDe isLAND

X

products; shellfish

ioWA

 

X

eggs

soUtH CARoLiNA

 

X

eggs; shellfish

KANsAs

 

X

eggs

soUtH DAKotA

X

   

KeNtUCKY

 

X

milk; shellfish

teNNessee

X

   

LoUisiANA

 

X

eggs

teXAs

 

X

shellfish

mAiNe

 

X

shellfish

UtAH

X

   

mARYLAND

 

X

milk (Grade A)

veRmoNt

 

X

shellfish

     

Packaged perishable

viRGiNiA

 

X

Dairy; shellfish

mAssACHUsetts

X

or semi-perishable

     

Packaged perishable

foods

foods

WAsHiNGtoN

X

     

Pre-packaged

     

Potentially hazardous foods, dairy, meat, poultry, fish, bread

miCHiGAN

X

perishable foods;

milk/dairy

miNNesotA

 

X

eggs; perishable

WAsHiNGtoN, D.C.

X

products, eggs, cold meats, packaged perishable foods, shellfish etc.

foods; shellfish

mississiPPi

 

X

shellfish

missoURi

X

   

West viRGiNiA

 

X

eggs

moNtANA

 

X

milk/dairy

WisCoNsiN

 

X

eggs; shellfish

NeBRAsKA

X

   

WYomiNG

 

X

shellfish

 

pAGE 32 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

Supporting Chart for Figure 3

 
   

PAST-DATE

FOODS FOR WHICH SALE AFTER DATE IS RESTRICTED

   

PAST-DATE

FOODS FOR WHICH SALE AFTER DATE IS RESTRICTED

STATE

NO

REGULATION

SALES

REGULATED

STATE

NO

REGULATION

SALES

REGULATED

     

meat, Class A foods

missoURi

X

   

ALABAmA

X

(baby food, infant formula, potentially hazardous foods)

moNtANA

 

X

milk

NeBRAsKA

X

   

ALAsKA

X

   

NevADA

 

X

Potentially hazardous

foods

ARiZoNA

X

       
     

Pre-wrapped

       

NeW HAmPsHiRe

X

ARKANsAs

X

   

sandwiches

CALiFoRNiA

X

   

NeW JeRseY

 

X

milk

CoLoRADo

 

X

eggs

NeW meXiCo

 

X

milk/dairy

CoNNeCtiCUt

X

   

NeW YoRK

X

   

DeLAWARe

X

   

NoRtH CARoLiNA

X

   

FLoRiDA

 

X

shellfish and milk/ dairy

NoRtH DAKotA

X

   

oHio

X

   
     

eggs, infant formula, shellfish, milk,

oKLAHomA

X

   

GeoRGiA

X

potentially hazardous foods, pre-packaged sandwiches

oReGoN

 

X

Packaged perishable

foods

PeNNsYLvANiA

 

X

milk

HAWAii

X

   

RHoDe isLAND

 

X

Packaged bakery

iDAHo

X

   

products

iLLiNois

 

X

eggs

soUtH CARoLiNA

X

   

iNDiANA

X

   

soUtH DAKotA

X

   

ioWA

X

   

teNNessee

X

   

KANsAs

X

   

teXAs

X

   

KeNtUCKY

 

X

milk/milk products

UtAH

X

   

LoUisiANA

X

   

veRmoNt

X

   

mAiNe

X

   

viRGiNiA

 

X

Dairy

mARYLAND

 

X

milk

WAsHiNGtoN

 

X

Perishable packaged

       

foods

mAssACHUsetts

X

All food products

(special focus on perishable and semi- perishable foods)

WAsHiNGtoN, D.C.

 

X

Potentially hazardous foods, dairy, meat,

poultry, fish, bread products, eggs, cold meats, packaged perishable foods, etc.

     

Pre-packaged

miCHiGAN

X

perishable foods,

meat, milk/dairy

West viRGiNiA

X

   

miNNesotA

X

   

WisCoNsiN

 

X

eggs

mississiPPi

X

   

WYomiNG

X

   
 

pAGE 33 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

APPEnDIx C: STATE DATE LAbELiNG rEGuLATioNS iN FuLL

ExpLANATioN oF quALiFiCATioNS For AppLiCAbLE rEGuLATioNS

This table includes information from all 50 states and the food products for which they regulate date labeling. Though this research is detailed, it is not complete and not all food products are covered in the following pages. Some food products that are not included in this appendix are:

Reduced-oxygen packaged foods, which are regulated in many states

Refrigerated, ready-to-eat, potentially hazardous foods

Infant formula, which already requires a “use by” date under federal law 276

Salvageable merchandise, which could require further labeling information for foods sold after date

Very specific foods items that are unique to a few states (e.g. fresh-squeezed juices)

In addition, the legal language included herein is excerpted from the laws and thus may be incomplete in some places.

How To uSE THiS TAbLE

The table is divided into four columns:

1)

Column I (Applies to Food Type) specifies the type of food to which the state law applies. “General” refers to regulations that are not associated with a specific food but apply to all food types; otherwise the specific food type will be stated.

2)

Column II (Purpose of Law) provides broad information about the relevant section of the law as applied to the particular food, specifying whether or not date labeling is required, whether or not sale after the date is restricted (and any exemptions); and whether or not alteration of date labels is permitted, when relevant. The term “date labels” is used generally in this column to include all terms, such as “sell by,” “use by,” “best before,” etc., even if the law itself may be more specific.

3)

Column III (Excerpted Language from the Law) contains excerpts of the exact language from the law or regulation.

4)

Column IV (Legal Citation) contains the citation to the relevant section of state law or regulation.

States with an “*” after them have adopted some version of the Open Dating regulation contained in the Uniform Packaging and Labeling Regulation in NIST Handbook 130, according to the 2013 edition of the Handbook. 277

States with no current regulations according to the qualifications assessed in this report contain “- -“ under each column.

**the information contained herein is current as of August 2013.

pAGE 34 | The Dating Game: How Confusing Food Date Labels Lead to Food Waste in America

STATE DATE LABELING REGULATIONS

 

i. APPLies to FooD tYPe

ii. PURPose oF LAW

iii. eXCeRPteD LANGUAGe FRom tHe LAW

iv. LeGAL CitAtioN

 

ALABAmA

General

Definition (date

(4)(a)(8) “Date limit” means all terms reasonably construed to mean food is not intended to be used or sold after the date limit, or that food quality is best before the date limit, and includes but is not limited to the terms “sell By;” “Freeze By;” “sell or Freeze By;” “Not to be sold After;” “Best if Used By;” “Best if Purchased By,” “expiration;” or other similar designations.